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Final Guest Post on “Using Checklists” in “Project Management for Lawyers” Series

Today, as part of my series on “Project Management for Lawyers,” I have the fourth in a series of guest posts on “Using Checklists for Legal Writing.” My guest poster for this series is Professor Jennifer Murphy Romig from Emory Law School.

Professor Romig’s first post appeared at https://thinklikealawyer.wordpress.com/2013/01/12/guest-blog-post-in-the-project-management-for-lawyers-series/, her second post appeared at https://thinklikealawyer.wordpress.com/2013/01/22/second-guest-post-on-using-checklists-in-project-management-for-lawyers-series/, and her third post appeared at https://thinklikealawyer.wordpress.com/2013/02/11/third-guest-post-on-using-checklists-in-project-management-for-lawyers-series-2/.

Here is Prof. Romig’s fourth post in her checklist series. This post focuses on checklists for writers working in teams.

Checklists for Legal Writing: Writing in Teams
(by Professor Jennifer Murphy Romig, Emory Law School)

Good checklists help professionals handle the complexity of modern work. The work is complex because it has no single right answer, and it often requires coordination of many professionals working together. The potential for better teamwork—both smoother and more effective in result—is a major point of Atul Gawande’s book The Checklist Manifesto: How to Get Things Right (Metropolitan 2009). Many examples in the book focus on checklists’ potential to help teams of medical professionals—often who barely know each other—coordinate care for surgical and hospital patients. As Gawande shows through other examples from aviation to construction to haute cuisine, the benefits of checklists for teams extend across industries.

Law students and lawyers can apply these lessons as well. The signature elements of checklists for teams, as identified by Gawande, are (1) a focused opportunity for the team to meet as they start the project; and (2) punctuated “pause points” throughout the project. At the start, checklists “activate” all members of the team to create a stronger sense of shared responsibility. As the project progresses, the team follows a schedule of agreed-upon pause points. A pause point basically means “stop and talk to others on the team.” These opportunities to talk bring out hidden problems before they fester. They allow coordinated adjustments as the team moves toward completing the project. Anyone who has been hesitant to work on a team for fear of poor communication or team dynamics may feel more comfortable with good checklist practices in place.

My sense is that many law school teams are doing a good job beginning their shared projects. The students, who may already be somewhat acquainted, embark on a project by discussing strategy, delegating roles, and agreeing on interim deadlines. When a law school team project brings together students who have never met or brings in a student who doesn’t know the others on a team, good checklist practice can equalize team dynamics and “activate” shy or hesitant team members. Allowing everyone to introduce themselves is not a novel idea, but within the context of an organized checklist for addressing a long-term project, it’s an important first step.

Checklists also speak to the way teams handle their workflow during the project. Most law school students working in teams are probably already using a series of interim deadlines. That is a very smart practice, but the approach to checklists in The Checklist Manifesto suggests some enhancements.

First, the pause point is more than a deadline. It provides the opportunity to actually pause and consult with everyone on the team about where the project stands. In this way, it is a check against forging ahead when in fact the team is working at cross-purposes. For example, students writing journal comments who have two advisors (such as a faculty member and a practicing lawyer) may want to use pause points for coordinating conflicting advice from the advisors.

Second, deadlines are a blunt instrument for dealing with conflicting personalities and work styles among team members. Team-based checklists provide more space for these differences to be recognized and honored, as well as managed. For example, one team member may be an extrovert who likes the team to write together at a table and talk about everything. Another team member may be an introvert who likes working quietly and more independently. In this situation, a schedule of pause points can help balance the strengths and weaknesses of each work style.

Beyond effective work on a single project, team-based checklists have a valuable role to play after the final deadline as well. In exploring ways that law firms could be more productive, the 3 Geeks and a Law Blog recently suggested that legal teams end their projects with an “after-action review” much as is done in the military. (That post can be found here: http://www.geeklawblog.com/2012/11/the-five-after-action-questions-we.html). An after-action review would require the team to address questions such as “What was our mission?”, “What actually happened?”, and “What have we learned?” The connection between after-action reviews and The Checklist Manifesto was brought to my attention in a good post by the Hildebrandt Institute, available here (http://hildebrandtblog.com/2012/11/30/law-firm-efficiency-responsiveness-reflection-and-checklists/). This type of reflection could be extremely helpful for any organization seeking to enhance the organization’s performance over time.

It should not be surprising that checklists can be equally if not more helpful for externships and law practice. Beyond introducing themselves at the outset of a project, law students and new lawyers may need to “activate” by clarifying the nature of their assignments. Succeeding on a real legal project often requires the junior lawyer to understand more than just what is due and when. One nice source for suggested questions to ask can be found here, on the University of California Hastings’ website: http://hws.uchastings.edu/career-office/docs/14.SucceedingInYourSummer-Part-timeJob.pdf.

Just as checklist practice may enhance teamwork at the beginning of a project, it can also enhance the team’s progress. Using pause points for checking in could help reduce time spent on revisions later. On a subtler note, collectively identifying—in advance—the strategic moments for pausing could lead the team to a richer understanding of the project itself, such as possible contingencies and other interrelated strategic decisions.

A few objections come to mind. A senior lawyer may say, “Pre-determined pause points are unnecessary. I expect junior lawyers to know when they need to check in.” There is truth in this observation because the best lawyers—or professionals in any field—must learn to recognize when they need help. Yet if communication only occurs when someone is concerned enough to specifically seek a meeting, then the team’s focus will tend toward problem management rather than problem prevention. One major point of checklists is to reduce the need to operate in crisis mode by triggering more problem prevention.

Some lawyers may say, “My team does use pause points. The junior lawyer e-mails me a draft. I look at the draft and then return comments.” This approach is tried and true, but it does not truly realize Gawande’s checklist ideal. To fully implement the checklist ideal, the communication among team members should include an exchange of the work itself as well as a focused conversation between the writer and the supervising attorney. Pausing to air concerns among team members would allow the junior lawyer to bring out issues such as potential arguments not included in the draft. This type of pause would also allow the senior lawyer to identify, for example, different strategic directions that have evolved since the earlier assignment.

A final note about checklists in real-world law practice: E-mail is an invaluable tool for communication, but its disadvantages may dilute the checklist ideal. If an attempt at pausing and conferring devolves into a series of drawn-out e-mails with communication gaps and distracted participation, the benefits of a team-based checklist will be largely lost. If team members cannot keep track of whether they have really paused and conferred or if they are done conferring, then they may wait too long to proceed or proceed without full buy-in of the team.

I don’t read The Checklist Manifesto to require actual face time, which sometimes is unnecessary or practically impossible. But I do read it to require engaged communication, timed for the benefit of the project. Project management software for the legal market holds promise at effectively coordinating legal professionals’ work and will be an interesting development to watch. Regardless of the technological platform used by teams of lawyers, checklists have a valuable role to play. And using checklists effectively may in turn enhance legal teamwork along the same lines as the medical teamwork described in The Checklist Manifesto, which at its best is not just “enjoyable” but “symphonic” and even “a thing of orchestral beauty.”

(My academic review of The Checklist Manifesto can be found in The Legal Writer’s Checklist Manifesto, 8 Legal Communication & Rhetoric: JALWD 93 (2011) available at http://ssrn.com/abstract=1776107; see also Jennifer Murphy Romig, Checklists for Powerful, Efficient Legal Writing, 17 Georgia Bar Journal 50 (December 2011), available at http://digital.ipcprintservices.com/publication/?i=92559&p=52.

Thanks are due again to Kathleen Elliott Vinson at Suffolk Law School as well as Timothy Pinto and Nancy Vettorello at Michigan Law School, who presented about the benefits of checklists at the 2012 Legal Writing Institute Biennial Conference.)

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