D. Casey Flaherty, corporate counsel, Kia Motors America
Last month, in " Trust but Verify," we identified a mini audit that in-house counsel can administer remotely to assess a firm's attitude about predicting budgets for a project. In this article, we offer a second mini audit, to determine if firms capitalize on economies of scale.
MINI AUDIT
Query outside counsel: Request a checklist for filing documents with a court. For a more complete picture, request checklists for 1) an active case, 2) the state court closest to counsel's office, 3) the federal court closest to counsel's office, 4) a state court closest to one of their firm's offices in another city, and 5) a federal court closest to one of their firm's offices in another city.
What’s being tested? Whether your firms take advantage of their economies of scale to reduce simple, frequent tasks to structured processes that increase speed and minimize error.
Why? the rules governing the filing and formatting of legal documents can be byzantine. United States Court of Appeals Judge Richard Posner, (7th Circuit, Chicago) for example, penned an epic takedown of The Bluebook (the classic book used for citations) that resonated with those who find the fetishization of string cites to be a tad bizarre. Yet, Posner's view is not universally shared. He is, and has earned the right to be, an iconoclast. His criticism is aimed at a legal world that, for better or worse, is awash in sticklers.
Courthouses employ many of these sticklers. Some sit at windows and gleefully reject your filing for incorrect hole punching. Others sit on benches and look unfavorably on lawyers — and by extension, their clients — whose briefs manifest the failure to understand (or the deference to conform to) a simple standing order.
Legal filings must comply with the rules. Yet, filing and formatting errors are all too common. Administrative errors account for more than 30 percent of reported malpractice claims. Deadlines are missed, essential documents are omitted, evidence is not properly filed under seal, an insufficient number of courtesy copies are sent to chambers, fonts are the incorrect size, case citations are not in the required form, exhibits are not consecutively paginated, etc. Often, it does not matter. But when it matters, the consequences can be significant. Silly as some rules may be, it is far sillier for them to be your undoing.
It is easy to run afoul of filing and formatting rules. Rules vary from circuit to circuit, state to state, courthouse to courthouse, and even courtroom to courtroom. Many rules are counter-intuitive, anachronistic, hypertechnical, idiosyncratic, arcane, non-obvious, or nonsensical. Moreover, it is a challenge to concentrate on minutia and margin size when there are devastatingly brilliant legal arguments waiting to be crafted.
But complying with the filing and formatting rules is also simple. Rules are, well, rules. They are in writing, accessible on the internet, concrete, finite, and relatively stable. Moreover, the rules govern frequently repeated transactions. How many filings does a firm submit to their local courthouse in the course of a year? Hundreds, if not thousands.
The responsibility for following filing and formatting rules is usually delegated — to associates, paralegals, and secretaries. The delegating attorney often implicitly assumes that their subordinate recognizes the existence of rules that need to be followed, knows those rules or will look them up, and will in fact abide by the rules. Too frequently, however, the subordinate is operating under different assumptions, such as:
1. The delegating attorney already followed the necessary rules.
2. The delegating attorney would give explicit instructions if additional rules needed to be checked.
3. A predecessor (e.g., the person drafting the brief being used a template) knew the rules and adhered thereto.
4. What has been accepted previously or elsewhere will prove sufficient.
Complying with filing and formatting requirements should be routine. But making it routine actually requires instituting a process. The most obvious process is a checklist. Filing and formatting are amenable to a checklist because the rules are simultaneously overwhelming — too abundant, varied, and detailed to rely on memory — and straightforward — reducible to precise, discrete, and linear instructions.
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Michelle Maratto
Here's the problem with this advice about monitoring or measuring your outside counsel via checklists. Checklists are great, they should have a place in any complicated endeavor in life. But they cannot take the place of THINKING. After all, checklists are only as good as the checklist's preparer. Better that you ask your outside counsel about the PROCESSES they have in place for ensuring that motions are made might right every time. In fact, I submit that no checklist can really be adequate to to task of ensuring that a motion gets filed right because the sources of places to look for that particular motion are too varied and specific. My firm has a PROTOCOL in place that directs the associate working on the matter to check in as many as seven different places for each motion, every time. In New York State, for example -- First, of course, the CPLR. One can never re-check the CPLR enough. Second, if needed, and if something is more than plain vanilla, certain reliable treatises, such as Siegel's on New York Practice, a good place for guidance. Third, the rules of the particular court. Fourth, the rules of the particular Part. Fifth, the rules of the particular judge. It is entirely possible, for example, that your motion can simultaneously be subject to and the procedure for bringing the motion can be increasingly refined by -- the CPLR, the Rules of the Civil Court of the City of New York, the Rules of the Housing Part, and the Rules of Judge Whoever. Sixth, the rule of that particular case, and it is vital not to ignore this. If a judge made a decision in an earlier order in the case about how long you have to bring a certain motion or how the motion is to be brought, than such is the law of the case. Finally, if after all this, if you still have any questions - call the clerk. But do not call the clerk until exhausting the first six steps, clerks will only have a healthy dialogue with you if you have done your homework, they otherwise don't like practicing law for you.
The other problem with creating checklists is this -- is the client paying for the creation, maintenance, and completion of such checklists? Is this something else to bill for? Finally, most people can check off a box on a list. Again, it doesn't mean that a project got done correctly. For my money, I want associates around who THINK, who are susceptible to training, and who get things done. A meaningful audit of outside counsel should perhaps look more closely at people and there methods of working, as opposed to their checklists, which can be little more than props in an outside counsel's audition.
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