After practicing law for several years, or doing anything for an extended period for that matter, the idea of a checklist sounds a rinky-dink. You’re a professional, after all, and you know this stuff cold. Checklists are for beginners. They’re mechanical and rather infra dig.
Maybe yes, maybe no.
My belief in the utility of checklists stems in part from airline pilots, professionals with a lot of judgment and training, which help them apply that judgment. Before takeoff, pilots use a checklist to ensure that all steps have been completed. This, rather than relying on memory. Obviously, a lot is riding on what they do.
The practice of law also calls for judgment as well as creativity, along with plenty of routine, mechanical steps. This holds true whether you’re engaged in transactional work, like a separation agreement or commercial land development, or litigation.
A recent book, “The Checklist Solution” by Atul Gawande, makes the case for checklists in various lines of work. The book itself is rather disarming in its brevity and lack of intellectual gravitas. Except that Dr. Gawande is a MacArthur Fellow.
It’s easy to disdain the idea of a checklist. It’s so unintellectual, so pedestrian.
Let’s get back to flying. Before World War II, Dr. Gawande writes, piloting a plane required plenty of skill but was not otherwise complex: “Using a checklist for a takeoff would no more have occurred to a pilot than to a driver backing a car out of a garage.” But with the development of more complex planes, flying became too involved to leave it to a pilot’s memory. As a result, test pilots developed checklists—at the time they were “simple, brief, and to the point—short enough to fit on an index card.”
Form books and trial notebooks
One type of legal checklist, in a way, is the form documents used in the practice of law. Law books are replete with fill-in-the-blank forms. It’s been observed that law offices can’t live with forms, can’t live without them.
Talking with an experienced trial lawyer, he mentioned having used a “trial notebook”: a good tool, he opined, for an attorney starting out, but unnecessary for someone with a decade or two of experience, such as he has.
Allow me to disagree. Regardless of one’s experience level, a trial notebook is a great tool. A trial notebook is an expanded version of a checklist.
Over the course of my career, law has evolved as well, becoming increasingly complex. In trying a case, many practitioners will rely on little more than instinct. In my opinion, these attorneys are “walking malpractice.”
As an appellate attorney, I get their trial transcripts, and dread reading them. In criminal law, consider the “motion for a trial order of dismissal.” Years ago, the Court of Appeals made quite clear the importance of this motion. To preserve for appellate review the issue of “legal sufficiency of the evidence,” defense counsel at trial must make a detailed motion, specifying why the prosecution’s evidence is lacking. CPL 290.10; People v. Gray, 86 NY2d 10 (1995).
Yet almost all trial transcripts I’ve encountered contain what amounts to, “Your honor, I move to dismiss on the ground that the prosecution has failed to establish a prima facie case.” Making such a motion is wasting one’s breath.
An appellate attorney who gets stuck with this as the main issue on appeal might need to switch the usual opening words of oral argument to, “May it pretty please the court.”
Needed: a feedback loop
Which brings up another point: the importance of seriously reviewing when things have gone wrong. Dr. Gawande writes: “we rarely investigate our failures. Not in medicine, not in teaching, not in the legal profession… A single type of error can affect thousands, but because it usually touches only one person at a time, we tend not to search as hard for explanations.”
Despite the legal profession having a near-perfect system for catching and rectifying its errors—it’s called appellate review—mistakes recur again and again in our profession, and little is done, whether by an individual attorney, an office, a judge or the profession.
In many areas of law, using a checklist is elementary. Consider your typical house closing, which has become vastly more complex than a quarter-century ago. If either side overlooks just one of many documents—HUD-1 statement, RP-584, attorney guarantee—that real estate closing may crash and burn.
With family law, a separation agreement contains an abundance of boilerplate, opaque language from centuries past. But if one of those dry-as-dust articles is omitted, the next step for a law office may be to notify its malpractice carrier.
The checklist methodology does not reduce the practice of law to a mindless approach; quite the opposite. By getting the routine down to a routine, it frees the professional to focus on the creative parts of our craft.
Fallibility of memory
It also recognizes the fallibility of memory, whether in everyday situations or when things start getting hectic and crucial.
Having a checklist may be more important when more than one person is involved. Where does each person’s responsibility end? When something falls between the cracks due to a misunderstanding of roles, each person may assign responsibility/blame to the other.
One other caveat I’d include with a checklist is to always think of it as in a beta stage. There’s no legal checklist so good it can’t be improved upon.
More information on this can be found at http://gawande.com.
Gary Muldoon, a partner with Muldoon & Getz in Rochester, is the author of “Handling a Criminal Case in New York.”