After a break between semesters, I’m back to blogging in the New Year. Among other things, as part of my series on “Project Management for Lawyers,” today I’m launching a series of guest posts on “Using Checklists for Legal Writing.”
My guest poster is Professor Jennifer Murphy Romig from Emory Law School. The benefits of using checklists to improve performance and avoid mistakes in many areas of work (including medicine, business, law, and engineering) has been very much in the zeitgeist recently, particularly because of the work of Dr. Atul Gawande, author of The Checklist Manifesto. http://gawande.com/the-checklist-manifesto. Professor Romig recommends that law students (as well as lawyers) can apply Dr. Gawande’s checklist principles to their own work to ensure professional quality.
And without further ado, here is Professor Romig’s first guest post on using checklists.
Checklists for Legal Writing
It’s hard to think of a subtitle expressing just how awesome they are.
by Jennifer Murphy Romig
This post is the first in a series about checklists for legal writing. Checklists are such a powerful tool for professionals across disciplines from medicine to aviation to law. Yet they are under-appreciated and at times insulted for a variety of reasons I’ll address throughout the series. I have written and spoken about checklists in other articles and presentations for law professors (http://www.alwd.org/LC&R/CurrentIssues/2011/Romig_1.html) and practicing lawyers (http://digital.ipcprintservices.com/publication/?i=92559&p=52). This series will focus primarily on legal-writing checklists for law students.
Not to start on a negative note, but the biggest checklist-related error that people make is merely collecting them. Collecting checklists feels good. You can fairly easily assemble a group of them for each stage of the writing process (like the UCLA School of Law’s checklists for researchhttp://libguides.law.ucla.edu/content.php?pid=43631&sid=353825 and editing http://libguides.law.ucla.edu/content.php?pid=43631&sid=353826) and most of the types of legal documents you might reasonably be expected to write (like this demand-letter checklist from Jeff Vale’s Blog on Litigation Strategy & Innovation http://www.jeffvail.net/2010/07/demand-letter-litigation-checklist.html).
In the olden days of law practice we used to collect such checklists in a folder in our offices; now you could hoard them in an online service such as Evernote. You might feel you are improving your writing just by collecting and reading these checklists. Unfortunately it’s not that easy.
The key to success with checklists is in using them. Not just when time permits. Not just on a new type of project you’re trying to learn. Not just when you’re working with a new supervisor and want to make a good impression. Selective use of checklists is probably better than nothing. But it isn’t likely to produce the kind of real, recognizable benefits that individuals want for themselves and professional groups want for their professions.
The father of the checklist movement is Atul Gawande, a surgeon and author. Gawande’s novels and writing in The New Yorker are worth reading just for his clear, interesting, accessible style. But his substance is even better. In The Checklist Manifesto: How to Get Things Right, Gawande outlines his work implementing a checklist protocol for pre-surgery preparations, as part of a project for the World Health Organization. He also shows how checklists are commonly used to great benefit in the aviation and construction fields, with brief mentions of other professions such as haute cuisine, finance, and law.
The basic theory behind checklists as discussed in The Checklist Manifesto is actually not that theoretical at all. The reason to use checklists is that they work. Surgeons in the WHO project initially objected to the checklist protocol as interfering with the real work of taking care of the patients. These objections fell away when the checklist protocol produced dramatic gains in surgical outcomes including significantly fewer infections and deaths.
The key reason checklists work is a pragmatically appealing one: they help professionals avoid the “stupid stuff.” It’s hard enough to do really difficult, complex things such as building a 50-story building or coordinating multiple doctors and nurses working on one patient. Getting caught up with stupid mistakes along the way makes the truly complex projects even harder.
Recent literature on cognitive psychology goes into more depth about why checklists work. As Nobel Prize winner Daniel Kahneman explains in his awesome book, Thinking, Fast and Slow, our brains have two “systems.” One of them is careful and deliberate. But that’s not the system that does most of the daily cognitive work. The system that does most of the work is fast, intuitive, and energetic—and it loves shortcuts. Have you ever looked back over something you turned in and thought, “How did I miss that mistake?” It’s not your fault. Well, actually it is, but really smart folks like Daniel Kahneman have gone to a lot of trouble to understand why this kind of thing keeps happening. The fast-working system in your brain takes a shortcut: you see what you thought you wrote, not what’s really there—or not there. Somehow triggering the slow, deliberate part of your brain could help you stop and study what really made it onto the page and what still needs to be added or changed. And can you guess one way to help trigger that slow, deliberate part of your brain? You got it: checklists.
There is a caveat about the theory behind checklists’ great benefits. In The Checklist Manifesto, Gawande is interested in how checklists improve the performance of experts in the field. He’s not talking about students, and in fact the WHO’s “Checklist for Checklists” (http://www.projectcheck.org/checklist-for-checklists.html) explicitly states that “A checklist is NOT a teaching tool . . . .”
Does that mean that you as students should stay away from checklists until you become experts? Uh, no.
Checklists have a different kind of benefit for you as a student. You are figuring out how to be a lawyer. You are laying down the foundation that you will work from and further build upon for the rest of your professional life. (Just one of many articles on this concept is Suzanne Rowe’s Legal Research, Legal Writing, and Legal Analysis: Putting Law School into Practice (2009), available at http://law.uoregon.edu/wp-content/uploads/2011/11/stetson_rowe1.pdf.) Precisely because you are getting started as a lawyer, checklists have a special benefit for you: they can help you to set good habits now.
Checklists have a downside, however, especially for students. You might get caught up in a different cognitive bias: what Kahneman calls the “availability bias.” That means you—and by “you,” I really mean all of us—naturally focus on the information that is available when making a decision. Kahneman memorably states it as “WYSIATI,” which means “What You See Is All There Is.” This bias can lead to superficial thinking. If you are trying to decide whether your memo is ready to turn in, you could somewhat mechanically check off the items on a checklist and say, “Voila! It is finished.” The risk here is that the “availability” of the items on the checklist could interfere with your deeper learning and questioning and critical thinking. This could mean not going deep enough on the checklist items that are available, or missing bigger-picture concerns hovering behind all of the items on the checklist.
Using really good checklists is a partial answer to this critique. If your checklist includes what you need to be thinking about and doing at a particular stage of the writing process, then this risk is reduced. But the critique cannot be totally answered. A good checklist represents and reinforces what you’ve learned, but it isn’t quite the same as the actual learning itself. Being aware of these limitations of checklists can help you to use them wisely in the short term on your law-school projects and in the long term as you build your lawyering skills.
This first post has summarized the theory behind checklists. A second post will address checklists for different types of documents, and a third post will address checklists for the legal-writing process. A fourth and final post will address checklists for writers working in teams such as on Moot Court. You should be able to tell I’m a pretty big fan of checklists, so I look forward to touting their virtues in the rest of these posts.
The author acknowledges Kathleen Elliott Vinson of Suffolk University School of Law. In July 2012, Professors Romig and Vinson co-presented “Check It Out: The Theory and Practice of Using Checklists in the Legal Writing Curriculum from 1L to 3L and Beyond” at the Legal Writing Institute’s Biennial Conference. This post draws on material from that presentation, and the author is grateful to Professor Vinson for her creativity and expertise with legal writing checklists and everything else that has to do with legal writing.
The author is also grateful to Timothy Pinto and Nancy Vettorello of the University of Michigan Law School.