Litigators are generally good lawyers. Most choose litigation because of the enjoyment and intellectual rigour of arguing law and facts. Few become litigators because they wish to be project managers yet, at least with high-value complex litigation, that is what they essentially become.
Litigation is a project: time and cost frame the planning, coordination and monitoring required to meet unique objectives. It has not always been seen as such; we do not need to look back as far as Bleak House to see that. The last 20 years have seen exponential change in the litigation landscape; new factors adding to increased pressure on ever-present variables. In this new world of dispute resolution, success is delivered through dynamic design.
Taming a different beast
Litigation has become more complicated: law and procedure change frequently (for example Jackson-based CPR, or Part 36 interpretation); the number of regulatory regimes and ethical considerations have increased dramatically. The consequences of mistakes are now worse. Sleep-deprivation for deadline-missing litigators after the Mitchell decision has only marginally improved after the tempering brought by Denton.
The subject matter is evolving. Financial litigators are looking at more complex products and more convoluted structures. Key evidence in cases is scattered throughout millions of electronic documents in multiple jurisdictions, yet the required speed of reaction and response to opponents has increased. The scale of the largest cases has multiplied and there is a growth in group-type actions in spheres such as investor protection and competition. These claims require heavyweight management.
New funding options bring new opportunities but also new responsibilities. Third-party funders require detailed financial projections and monthly reports. There are new competitive pressures from evolving traditional law firms, newer boutiques and direct access to barristers. If law firms are to attract clients by offering ‘skin in the game’ funding contingent on success, the firm bears the consequences of how much the ‘skin’ costs, how long the ‘game’ lasts and, of course, what the result of the ‘game’ is.
The above ignores the detailed phased Precedent H budgets now required at the outset of claims for under £10m. In order to get recovery of costs overruns from losing opponents, increases in any aspect must be approved by the opponent or court in advance of the overrun being incurred.
So these are some of the changes which must make litigation a misery for those who have barely evolved in two decades of practice – but which are an opening for lawyers who embrace project management.
Defining the objectives
Key to the project management approach is to ensure both cost and time are central at all stages of planning. The aim of the litigation needs to be considered with the client not just in terms of the objective, for example looking at the amount of damages sought to be recovered, but also the time in which those damages are to be recovered and the cost of seeking those damages. Would the client be happy with half the amount of damages claimed if the money is received two years earlier than by going to full trial? Would the client be happy to receive a lower proportion of the damages if there was to be no legal outlay on the balance sheet?
Designing the process
In planning how to get to the legal and factual objective within the aimed-for time and cost, project management tools can be used; whether specific project management software or simply creating bar charts, diagrams or flow charts on more basic programs. Critical path analysis and process mapping look at where efficiencies can be built into the plan. With resourcing, consider if it is necessary to be paying for office space in central London for everyone working on the case.
Could aspects be outsourced? If so, what is the quality control system on selection and monitoring of those outsourced services? E-disclosure is an area where costs can quickly spiral out of control unless planned well. Is standard disclosure really necessary? Litigators have been using predictive coding technology for years, but now the Pyrrho decision opens doors to new efficiencies.
This all sounds very ordered. But is not high-value complex litigation unique, unpredictable and with opponents who will do anything to savage your strategy? Yes, so planning is a risk-based approach. The type of opponent behaviour to expect throughout the dispute is often apparent by the time the lawyers have been contacted by the client. Top litigators are able take a view on the risks of, for example: whether there will be a security for costs application; whether there will be a split trial; or whether specific disclosure applications will be necessary.
If there is a genuine ‘known unknown’, alternative project plan aspects might be needed. Settlement strategy must be factored in throughout. It would usually be foolhardy to launch proceedings without being prepared to fight all the way to trial, but a case can settle at any moment – and the reformed Part 36 gives clients more control over forcing settlement.
The outputs of the planning process are not just a phased budget and a timed and costed project plan, but also clear charts showing clients the overall financial result for them if they win or settle at different times – and if they lose.
The law firm needs to plan in tandem. Great results for the client are more likely to be achieved by a firm making a profit from a case and with the cashflow to properly run the case to trial.
With a partner leading overall strategy, some top firms now use project managers (with a background in business, not law) to assist in monitoring aspects or sub-projects of a case. Project managers can also assist with coordinating teams of paralegals and delivering monthly reports to clients, funders and firm management.
At all stages of a case clear internal communication strategies (both ‘vertical’ and ‘horizontal’) are needed. Checklists updated to reflect the latest law and procedure are increasingly being used by litigators to make delegation easier and safer. These were pioneered by pilots and surgeons and are used for relatively routine activities which would have catastrophic consequences if a step is missed.
Technology assists again when it comes to delivering projects. Phased time recording allows budgeting software to give alerts in good time for applications for budget extensions to be made to the court and funder. E-disclosure ‘dashboards’ show the progress through exercises. There will be a growth in technology predicting the documents and resources that are likely to be required by litigators who are taking a certain step in a case (and in a world where computers beat the best human chess players, why won’t artificial intelligence assist with case strategy before too long?).
Of course, plans have to be ready to be changed – but with all changes looked at from a time and cost perspective.
Unless there is a feedback loop in firms, then wheels are reinvented and mistakes are repeated. It is no good waiting until the end of a five-year case to analyse e-disclosure lessons from it if there are tens of other e-disclosure exercises completed in that time. Tacit knowledge needs to swiftly be turned into explicit knowledge in the form of guidance and checklists. Committees on key areas of the litigation process can keep firms at the forefront of developments.
Metrics are needed to ensure continuous improvement: not just data capture in terms of shifts from project timing and cost baselines, but also in terms of satisfaction levels for the client and profitability for the law firm.
Evolution of KM
KM in litigation is no longer about churning out articles on the same Supreme Court cases that every other firm is writing on. It is now about engineering and improving the product sold by the firm in terms of quality, delivery, cost and timing. Interfacing daily with client lawyers, project managers, management, IT, the costs team and HR, KM is a key facilitator of firm-wide project management.
Complex disputes involve skills in maths, accounting, economics and logistics. In the midst of this new landscape, there remains no substitute for human judgement.
Tom Matusiak is senior associate, knowledge development lawyer at Stewarts Law, Leeds