While the particulars of Assignment #1 may not be a daily occurrence, the skills tested are generally applicable. Staying with the examples above, much of the data that Kia provides to outside counsel in the course of representation is transmitted as Excel spreadsheets. The data is essential but will often prove useless unless the recipients can organize and analyze it using the same basic Excel functions tested in the audit.
Assignment #1 also tests PDF skills using mock exhibits. Assignment #2 — preparing an opposition to a motion for summary judgment — further examines the associate's ability to manipulate PDFs in the context of assembling a federal e-filing. Likewise, in preparing the memorandum for Assignment #2, the associate is tested on a number of basic skills in Word.
As mentioned above, beyond the associates' training, the assignments are designed to reveal whether the firm has implemented procedures and processes that increase cost-effectiveness. In Assignment #3, for example, the associate prepares written discovery responses. The associate is not actually expected to draft the responses. Rather, the object of the inquiry is whether the firm has setup a logical, deliberate process for the associate to do so.
At the most basic level, the associate should turn the discovery demands over to a word processing department to create the response document. Most associates do just that and get back a Word document that provides a blank after each request. Typically, an associate will then open up the last discovery responses they drafted to copy and paste the standard boilerplate — i.e., general objections and common specific objections (e.g., burdensome, vague).
The premise of copy-and-paste has merit. Truth be told, there are a finite number of general and specific objections. There is little reason to reinvent the wheel. Execution, however, is generally haphazard. Few lawyers can identify the source of the boilerplate they are grafting onto their responses. Even if the original source document was stellar, integrity degrades as iterations multiply, mistakes are compounded, and artifacts of unique situations are carried forward to incongruent circumstances.
Ideally, the associate would start with a true template — a document that provides a comprehensive selection of general and specific objections that reflect the firm's best practices. The associate should be able to use such a template to guide the word processing department to provide more than blank responses. Selecting from the template or a related document, the associate or partner, who might actually have the time to oversee the process once it is made less labor intensive, would, for example, direct the word processor to insert general objections 1, 2, 4, 6, 9, and 11. Similarly, the associate might instruct the word processor to insert specific objections 1, 2, 3, and 5 in response to Request for Production No. 1 and specific objections 1, 3, 5, and 8 in response to Request for Production No. 2. And so on.
Of course, drafting discovery responses should not end there. As with her expert selection of objections, the lawyer will add value in tailoring the responses to exigencies of the litigation. That is, the reliance on the process is not meant to remove the lawyer from the equation. Rather, the objective is to relieve the lawyer of costly drudgery and focus her efforts on the small but vital differences that make the case unique.
Similarly, in Audit Assignment #4, the associate modifies a settlement agreement. Again, the associate's drafting skills are not at issue. Instead, the audit is investigating whether the firm provides effective mechanisms for tapping into institutional knowledge. Are there checklists for what should be included in settlement agreements (e.g., confidentiality, choice of law, attorneys' fees)? If the agreement is lacking a necessary provision, does the firm have a curated repository from which the associate can select approved provisions?
Despite the snowflake-like uniqueness of every agreement, standard provisions are, as the name implies, standard. No one expects (and, indeed, no one wants) the associate to draft standard provisions from scratch. If the associate is not provided a readily available resource, he will go hunting for a prior agreement from which to copy and paste. He may very well settle on the easiest to locate, rather than the most suitable to the situation. Though there may not be any cost difference between the two methods, the deliberate guidance provided by the process-driven approach is more likely to deliver a quality outcome. Effectiveness is an even larger consideration than cost in assessing cost-effectiveness.
D. Casey Flaherty is corporate counsel for Kia Motors America. Flaherty's opinions are his own, not those of Kia Motors. Email: CFlaherty@kiausa.com.
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Dave Swider
Both this and the follow up article were interesting and entertaining to read. While the ability to use basic tools to perform true "lawyering" are important, we have seen tremendous inefficiencies in the processes firms use to perform document review. Given that document review can easily constitute the largest component of a client's bill, that may be a good place to assess firms' efficiencies and technological abilities.
We sometimes work with firms that try to apply the "tried and true" paper document review methodologies to electronic documents, generally providing dismal results in terms of cost and efficiency. We also work with firms that have a documented review workflow, defined QC checks, statistical sampling and other modern process management tools. Those firms almost always get through their review in a shorter amount of time at lower cost and with little pain, particularly at production.
Given that document review can be highly structured, just like any other "manufacturing" process, it would be interesting to see the results of an audit on that aspect of legal practice. Efficiencies during this phase will pay off handsomely for both firms and corporate clients. Firms that understand this will, I suspect, be better positioned to retain their clients.
Thanks again for a wonderful read.
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Ted Brooks
Wow, what a concept! I guess that's one way of screening who will be working on your case. I just wrote a brief piece in response to two similar articles, related to young lawyers and their familiarity (or lack thereof) with technology.
http://trial-technology.blogspot.com/2013/01/master-of-your-domain.html
Looking forward to part 2.
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V. Sheri Towne - the Practical Paralegal LLC
First - Great concept which would benefit clients of smaller firms as well! Frankly, the first thing that ought to happen with #1 and #3 is to delegate the drafting task to a seasoned paralegal. The audit would test the paralegal as described and then test the associate/partner on the ability to efficiently add value to the resultant draft work product (e.g. using "track changes" to make modifications directly to the document rather than handwritten changes to a printed version). Appropriate personnel using appropriate technology leads to the best cost savings. Word processing creates the skeleton, paralegals flesh out the draft factual and substantive details, lawyers provide their legal expertise to make sure the final product meets tactical, strategic objectives based on their legal and subject matter expertise.
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