Introduction
Our clients place a significant emphasis on estimating, scheduling, cost tracking, and managing budgets both before the project commences and continually throughout the construction process. While such project management approaches are routine in the construction industry, they are utilized with far less frequency and with far less depth in the legal field. Instead, there is often a disconnect in how legal counsel tackles a complex problem (here, a case) as compared to how our clients would approach the same (there, a project). These time-tested project management approaches that are routine in the construction industry should be applied to legal matters starting when the claim arises through settlement or judgment.
Through Legal Project Management or “LPM” construction lawyers approach planning for legal cases more like planning for construction projects, tied to specific scope and objective criteria. Our clients are looking for that same structure and accountability from their outside counsel that they offer in their work. We can provide our clients with more accurate and detailed budgets and schedules, better manage our legal teams, achieve critical milestones, and bring the matter to a conclusion more efficiently and cost-effectively.
By providing our clients with greater predictability for the cost and time investment for legal services, our clients are better able to assess and manage their business risks overall.
Increased adoption of LPM by law firms is often “in response to continued pressure [by in-house counsel] to reduce the cost of services and the concomitant need to improve efficiency.” Firms that fail to adapt can expect to see a decline in work as other firms/lawyers distinguish themselves as more efficient and predictable managers of legal work.
Legal Project Management: A Practical Definition
There is no standard definition for “legal project management” and certainly there is no one-size-fits-all protocol for every case.
At its core, legal project management exhibits certain universal principles:
- a proactive, disciplined approach to managing legal work that involves defining, planning, budgeting, executing, and evaluating a legal matter;
- the application of specific knowledge, skills, tools, and techniques to achieve project objectives (the client's and law firm / legal department’s); and
- the use of effective communication to set and meet objectives and expectations.
To implement legal project management effectively, lawyers need to invest time on the front end of a matter to thoroughly “define the objectives and scope of [a legal] engagement, to identify necessary tasks, to identify necessary personnel for the various tasks, to create a timeline (or timelines by phase, i.e., a schedule), to develop a reasonable budget, to ensure all personnel, including inside counsel [and] outside counsel, . . . have necessary information for their respective tasks, and to communicate changes across the team, whether modification in scope, schedule or budget.”
Best Practices to Structure a Legal Project Management Approach
In order to apply legal project management techniques effectively, there are five key areas for a lawyer to consider at the outset of a case and then revisit and manage throughout the engagement. As further described below, these five areas—schedule, budget, team members, subcontractors, and client communication—are fair analogs to our construction clients’ considerations in their own construction projects.
Schedule
As advocates for construction clients, we are no strangers to the complex scheduling software used to manage construction projects. Preparation of a baseline and determination of a critical path are along with predecessor and successor activities. The project schedule is typically tied to the construction budget along with subcontractor, labor, equipment, and material needs. This cohesiveness between schedule and cost allows our clients to better plan cost flow and also to manage adjustments if changes arise in the project.
Primavera P6 complexity is not required for legal project management. Even a simple bar chart can prompt the legal team to thoroughly think through the elements of the litigation plan and the required timeframe to complete that plan.
The logical starting point for a lawyer is the court’s or arbitration panel’s scheduling order that provides milestones and due dates. However, for the schedule to actually serve as a useful tool, it needs to go beyond listing due dates alone. The lawyer must consider how to reach each milestone and all the predecessor activities required to meet each milestone. In addition, careful planning and consideration of the external forces, such as the venue, the specific judge or arbitration panel, and opposing counsel, will allow the lawyer to identify relative time for each legal activity – from pleadings to written discovery to depositions and dispositive motions. In that way, lawyers can also more efficiently plan when underlying tasks need to be accomplished and if some work tasks can be performed simultaneously or must be completed in advance. Giving greater thought, planning, and detail to the schedule on the front end makes readjustment easier if changes arise in the case.
Tying the litigation budget into the schedule dates is another important step. Tying the budget to the schedule communicates to the client when the significant costs will be incurred. For budget and cash flow planning -- e.g., completion of a round of depositions, filing a major dispositive motion, finishing pretrial preparations, or attendance at trial or hearings. By doing so, the client will have a planning tool for its own internal project budgets, company cost reporting, and reserves. In addition, understanding the timing of key costs can also serve as a strategic driver for the client to assess its settlement position and when and whether to mediate.
Making staffing decisions early on and then including them within the schedule is also quite valuable. It also can communicate to the client when it will need to have its own internal personnel resources at the ready.
A one-stop schedule that reflects the comprehensive litigation strategy with accurate milestones is an extremely worthwhile step, to take on the front end of a case. Creating easy access to a schedule that is detailed, lists the working groups, and that is updated regularly is a smart way to keep all members of the legal team on track and rowing in the same direction.
Budgets
Clients invest significant effort and time on the front end to prepare the construction estimate, bid and budget. Like our clients, construction attorneys must draw upon years of data, experience, and prior projects to provide detailed and accurate cost planning for the project estimate and budget. Again clients invest significant effort and time on the front end to prepare the construction estimate, bid, and budget.
One way firms may approach the legal budgeting task is using the “Litigation Code Set of the Uniform Task-Based Management System (UTBMS)” as a means of structuring the cost line items. These UTBMS categories include L100: Case Assessment, Development and Administration; L200: Pre-Trial Pleadings and Motions; L300: Discovery; L400: Trial Preparation and Trial; and L500: Appeal. Using the UTBMS has the added benefit that legal counsel can later mine cost-tracking data from the instant case to report performance to the client and also from case-to-case to more accurately predict the costs of certain litigation tasks for future cases.
The lawyer must have the litigation plan in mind to efficiently prepare the budget. “The key is to break down the anticipated litigation into component parts [by giving thoughtful consideration to] [h]ow many hearings, depositions, briefs and discovery requests and of what duration and length can reasonably be anticipated? How many lawyers will likely be assigned, how many hours can each be expected to devote to the case, and what are their hourly rates?” The lawyer also must take stock of the external factors such as opposing counsel, the venue, and the judge, to properly allocate costs for the different line items.
The budget is a communication tool that provides specifics on estimated costs as well as an opportunity to explain or expound on how the legal strategy is intended to achieve the goals and objectives for the case.
With the unpredictability of litigation, lawyers may be loath to pin down costs on a granular level for fear of overstating or understating the potential cost and time investment. But, with an effort to adopt project management techniques along with a commitment to actually collect the cost data points, law firms can move toward more accurately pinpointing and predicting costs. And at the least, from a single project lens, preparing a detailed budget that gives greater thought to cost forecasting and then tracks costs in a task-by-task way allows more meaningful cost communication to the client.
Team Member Selection
Deciding on the members of the legal team in advance is a key component to scheduling and budgeting. This requires consideration of the relative skill level needed for each task. In other words, not all legal work requires the senior level associate or partner to complete the work.
While not always an option with all our clients, another cost-saving and efficiency approach is having the client involved in certain tasks (such as technical document review). At the very least, offering or presenting this approach as an option to the client is worthwhile as a means of controlling costs.
“Subcontracting” ESI and Expert Witnesses
Hiring discovery vendors, technical experts, and other litigation support professionals can each generate significant expense, and even more so if not properly managed by the legal team. Clients naturally rely on the outside counsel to properly vet the third parties and keep their costs within the confines of the litigation budget.
Construction cases are notoriously rich in paper documents and electronically stored information (ESI). Critical consideration to methods of controlling discovery (and attendant costs) is an important element of effective legal project management – the cost of handling ESI can compete with or exceed attorneys’ fees in document discovery.
Part of that management is deciding whether and to what extent to outsource elements of ESI discovery and what can be handled in-house by the law firm or the client. Legal project management technique requires pre-planning before the discovery vendor is fully engaged is vital.
Including the client in this vendor decision-making may be prudent. Some clients, particularly larger ones, have existing engagement contracts with discovery vendors. There may be other cost-saving approaches as well – the client may want to be involved in conducting parts of the review to more efficiently complete this often-laborious and therefore expensive task.
Another potential significant third-party expense is experts. The lawyer needs to identify the right expert(s) for the case and lay out a clear engagement scope. This should occur in much the same way clients engage specialty subcontractors. Consider including the client during this expert selection process. The client may have insight on the right experts. In addition, even if the client directly selects, engages, and/or pays expert witnesses, outside counsel should consider managing the scope, coordination, and expense of those experts as part of their responsibility, unless there is a very different clear and explicit understanding.
Client Communication
Just like on a construction project, a successful legal team must convey key information to the client decision-makers on a regular basis without inundating the client with details or bogging them down with too frequent updates. These decision-makers need the tools to internally evaluate business risks and to make decisions about next steps. “Clients generally do not get upset with outside counsel over bad results as long as they are fully informed of the risks and are able to manage those risks through informed decisions.”
Knowing how, to what extent, and when clients wish to receive information requires a simple and obvious approach -ask them.
Contingency Plans
Outside counsel cannot control other parties or the court or arbitrators. The unplanned and unexpected will happen. An opposing counsel may file an unexpected motion or demand excessive discovery and obstructions and the court may delay a critical substantive decision, any or all of which materially impact the scope, schedule and/or budget of the best pre-planning. Some contingency must be allowed in a comprehensive plan, but it may be equally important to communicate what the schedule and budget do not cover. So for example, if ten depositions per party is a key and reasonable assumption, that should be stated.
When the unexpected or the excluded happens, having an open dialogue with the client in real-time about how to react is necessary.
Debriefing and Applying Lessons Learned
One of the most important, and perhaps underutilized, components of legal project management is what happens when the case (or at least a major milestone in the case) is complete. Taking a critical look at what worked well, what tasks bogged down the team time wise, and the like, can streamline unnecessary steps and activities and improve for the next case. Each step or activity that is eliminated shortens the value chain, which is the distance between the start of the process and the final goal.”
Equally important is creating flexible and effective checklists, both substantive and procedural, and a way to catalogue them so they may be easily “consulted in future similar matters.” These checklists can be tailored to the substantive legal issues and the jurisdiction and will reap dividends time wise.
Conclusion
We can take a page from our construction clients’ project management techniques, to adapt and deliver quality legal services with more predictability and efficiency. Firms and lawyers that make the leap can offer their clients serious LPM and can achieve greater transparency, predictability and client satisfaction. Firms that continue in the status quo can expect to lose out on future business as other firms adapt and provide more efficient and cost-effective services to clients.