GPSolo Magazine - October/November 2005
Eight Wishes Overheard at the Pearly Gates
Those willing to concede the possibility that a lawyer might actually be welcomed by St. Peter at the Pearly Gates are nevertheless likely to think the situation more humorous than serious. (Standard joke: The lawyer complains he’s only 42 years old, and St. Peter agrees but notes that according to the lawyer’s time records, he’s 106.) Still, lawyers standing before the Pearly Gates are likely to have the following wishes on their lips when thinking of the state of the law offices they left behind.
Don’t think for a minute that these wishes are fanciful or speculative. Lawyers have a lower mortality rate than many occupations, but unexpected death is not unheard of, even among young, vigorous lawyers. Illness or serious injury also occurs, which can make the lawyer just as unavailable to the client as death. So consider the following list of what lawyers nearing the Pearly Gates wish they had done to prepare their practices before they were whisked away, and consider how they might apply to your practice. In reverse order, these wishes are:
8. I wish I hadn’t kept everything in my head. Most files do not contain all of a lawyer’s thoughts. Theories, plans, possible arguments, alternative strategies, and odd facts and insights about the matter are more often than not buzzing around in a lawyer’s brain. The cold file contains no reference to these important matters, and the client is the one who suffers if the lawyer is suddenly unavailable. Lawyers simply must get into the habit of dumping the information and thoughts in their brains into their files. As Greg Krehel, CEO of Case-Soft, has observed, if you try to keep case facts in your head, you turn yourself from a thinker of immeasurable value into a $100 disk drive. So take advantage of technology and make sure there’s a place in the file or on your computer where you’ve stored all the facts and ideas about the case.
7. I wish I’d had a plan for what to do on the client’s matter. Many lawyers are terrified of planning strategy for a client’s matter until they are able to produce a solid plan that covers all possible contingencies. In practice, such an ideal plan is rarely possible and may not even be affordable for the client. The difficulty of producing the perfect game plan does not relieve the lawyer of the requirement to do some planning on how the matter is going to be resolved for the client. At a bare minimum, this should consist of a list of things that have to be done to resolve the file and should establish a rough schedule for getting them done. As work progresses on the file, other issues may be added, but at least there’s a framework around which the lawyer—and his or her successor—can work.
6. I wish I’d worked up the file more. This wish is usually a function of the previous two wishes—i.e., the failure to reduce to writing as much as possible and to plan how to resolve the matter. In most cases where lawyers have failed to work up their files, the cause is that the lawyers have too many ideas floating around their heads and have not reduced those thoughts to a firm plan. Most lawyers are also perfectionists and are reluctant to implement a plan that they believe to be incomplete. But an incomplete plan will fill itself in as you work on it, and it’s always better than no plan at all.
5. I wish the files were better organized. Few things are as embarrassing as having to deliver to the client or successor counsel a file that is incomplete or disorganized. The office staff often has to rummage through filing boxes and the lawyer’s desk to find important documents. The reason for this lack of organization is that many lawyers still use original documents as a kind of tickler system for what they have to do. They keep the letter or pleading on their desk and review it as a kind of to-do list. In these days of cheap photocopying, easy scanning, and enormous hard disks on the computers that practically every lawyer has, there is simply no good reason for a lawyer to hold on to any piece of paper. Make it a policy to review an original document when it comes in, then make a copy or get it scanned, but get the original off your desk and into the file! Besides helping you keep a neater desk and office, this policy turns the file into a usable tool for review, not a disaster to be avoided at all costs.
4. I wish I’d kept a to-do list. Rare is the lawyer who has only a single matter to work on. If a lawyer is handling multiple matters, it’s advisable to keep a to-do list that covers the status of all matters. The to-do list should also include impending deadlines or court appearances. If the lawyer is then unavailable for whatever reason, anyone who has access to the to-do list will know what has to be done immediately and what is pending. As a general rule, it’s advisable to have both a weekly and a monthly list. Monthly, by the way, does not mean what needs to be done in the current calendar month; it covers the next four to six weeks.
3. I wish I’d written the tough letter to the client. No lawyer likes to disappoint a client, particularly if the client has invested considerable time and money in the matter for which the lawyer was hired. However, the lawyer does not make up the facts, and not all matters are going to turn out as the client would like. This is hardly the fault of the lawyer, but the lawyer needs to keep the client closely advised. If a matter is not turning out well, the sooner the client is informed of it, the better. It’s always best to have the bad news in writing; a face-to-face meeting may be so emotional for the client that the client can’t remember what the lawyer advised. A letter describing the problem (hopefully in non-legalistic terms that a layperson can understand) can be reviewed after the emotion passes. Clients may react unpleasantly to bad news, but they will be far more unpleasant if the matter is deferred.
2. I wish I’d had somebody who could really cover for me. This is a particularly severe problem for sole practitioners, but many members of small firms (under five lawyers) do not know what their partners are working on. The firm should have a plan for meeting and reviewing what each of the lawyers is working on. Sole practitioners face different challenges, but most malpractice carriers require sole practitioners to designate a lawyer who has agreed to assist if something happens. If you are a sole practitioner, you probably have a network of other sole practitioners with whom you share ideas. If one of them is willing, enter into a formal relationship to plan out how that lawyer can assist you if you are incapacitated. At a minimum, you should ensure that there are no conflicts, and the assisting lawyer should be aware of where the files are and where he or she can find your to-do lists (the ones described above in wish #4).
1. I wish I’d realized that I wasn’t indispensable. This wish really subsumes all the others. In the middle of a crazy workweek, it’s hard to remember that you are just a cog in the machine, and that another lawyer could do your job. Alas, it’s true. If you realize that you are not indispensable, that recognition forces you to start considering what would happen if you were dispensed with, either by the client or, as we used to say as first-year law students, by an act of God.
Even in the event of far less dramatic circumstances than an unexpected interview with St. Peter—such as being substituted out of a matter by the client—planning ahead will increase your comfort level and ease the transfer. And should you actually turn out to be as immortal as we all think we are, planning ahead will reduce the stress that is already far too endemic in the profession.
Finding the Time
The key to avoiding these eight wishes is planning, something that lawyers are notoriously bad at. As compared to successful business executives, lawyers are typically rotten planners because they are used to reacting rather than acting in anticipation of events. So take a page from the business executives and start learning how to plan ahead.
Because lawyers are used to reacting rather than anticipating, you need to break the usual routine. Most executives who are known as good planners carve out a portion of the day to review what they’re doing, prioritize certain actions and demote others in importance, and just plain think about what they want to accomplish. Most lawyers find this difficult to accomplish.
For planning to work, you need to be serious and disciplined about it. Find a portion of the day when you can work without interruption. Resist the temptation to turn planning into an extended work session. The purpose of setting aside time is to think and to evaluate, not to generate work product. Many people find it easiest to do this early in the morning or late at night, when there usually are few distractions. Well-organized and committed lawyers can do it at any time, instructing the staff to hold all phone calls and refuse entry to anyone other than firemen arriving to extinguish a blaze.
When and how you make time for this exercise is less important than that you just do it. It may take some experimenting for you to find the right time and circumstances. Don’t give up. The rewards will show themselves within a few weeks, and you should see your stress level decrease as you get more control over where you’re going with your caseload.
Traditionally, lawyers simply wrote memos about the matters they were working on to record facts and plans. While the memo is still the most common form of planning, consider the following programs that are available on most PCs:
• Spreadsheets . Particularly useful if your matter involves complicated financial calculations.
• Outlining software. While nothing has yet replaced the wonderful features of the grand old DOS program GrandView, most word processors have elementary outline capabilities, and there are specific programs (such as NoteMap) that are dedicated outliners.
• Data storage programs. Particularly useful for litigation, programs such as CaseMap, Summation, and Concordance will help you track facts important to the matter you are working on.
• Brain maps. This type of software supposedly allows you to play with ideas and develop an outline. They tend to be highly idiosyncratic. Some people find them intuitive and helpful; others find them unintelligible. Your mileage will vary, but they are worth considering.
• Integrated case management programs. TimeMatters, Amicus, and Abacus all have the capabilities to manage matters and produce various to-do lists and calendars. The learning curves are often fairly steep, but the power of the programs is undeniable.
• Gantt charts. This is a somewhat esoteric type of program with a steep learning curve, but it is often used successfully with military contractors and construction companies to manage complex projects requiring multiple inputs from different people. It is often overkill for small matters but is worth exploring for larger ones.
Whatever programs you choose, try to stay with mainline programs. Many excellent programs have appeared on the market but have died from lack of a wide user base. Although some aspects of these programs are superior to those currently on the market, they eventually become unusable as technology advances, and you’ll find yourself faced with an expensive and time-consuming migration to a new program.
Joseph M. Hartley teaches law at Concord Law School and lives in Santa Monica, California. He can be reached at firstname.lastname@example.org.