COMMENTARY

Unlike many of my colleagues, I admit to being a bit stubborn and set in my ways. After all, if I have done something the same way for years, there can’t possibly be a better way to do it. If there were, I would have thought of it.

But the reality is that there are ways to improve many of the things we do. Similarly, there are ways to be sure that even those things we know we are doing well can be done with fewer mistakes. And fewer mistakes can translate into more satisfied clients, better results and fewer legal malpractice claims.

And guess what — the method I’m going to suggest for improving what you’re already doing really doesn’t involve change. Instead, it means making sure you are doing everything correctly and consistently. What is this elixir that can reduce stress, improve results and assure consistency?

A checklist.

That’s right — checklists can be the most valuable step you take during virtually every client matter or other project you work on. They can also be vitally helpful in managing your practice. And because checklists assure that you don’t forget things, even deadlines, they reduce the chance that you will have to notify your carrier that you “forgot something.”

Comment 5 to Pennsylvania Rule of Professional Conduct 1.1 notes that “competent handling of particular matter includes … [the] use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation.”

No book demonstrates the power of checklists better than The Checklist Manifesto: How to Get Things Right, the best-seller by Atul Gawande, in which he argues that everyone can do their jobs better using checklists.

The book offers excellent examples of how medical checklists save lives, even reducing the rates of infection and death in countries where access to medical care is limited.

Gawande divides checklists into five types, although most lawyers only use the first and fifth types:

1. Task lists. These merely outline procedures that must be followed in a specific order. Task lists are primarily for technical endeavors that involve many details, but minimal judgment. Thus, formatting documents for filing would fall into this category.

2. Troubleshooting lists. These lists are used primarily to figure out why something went wrong and how to fix it, and aren’t commonly used in law firms.

3. Coordination lists. These lists are commonly used at construction sites and in other complex projects that require multiple people. Again, these aren’t commonly used in law offices.

4. Discipline lists. These are checklists that are designed to be used in tense situations in which it is important to make calm, reasoned decisions. Thus, surgeons would use these checklists in the event of uncommon circumstances during major surgery.

5. To-do lists. These are the types of personal lists we all make, whether mentally or in writing, which are revised daily, weekly or monthly, as a method of managing time. We all use them, but don’t necessarily realize that these are checklists, too.

Checklists aren’t new. We all use them, but may not realize it. Does your firm maintain a list of upcoming deadlines, like a statute of limitations list? Or do you have a list of all the upcoming dates on which briefs are due? Or do you keep lists about what kinds of coffee you like to have in the office? These are all forms of checklists.

So, let’s look at how checklists can help lawyers.

Consider a brief you’re about to file in the U.S. Court of Appeals for the Third Circuit. The court publishes a “Chart of Requirements for Briefs” and a “Chart of Requirements for Appendix,” which serve as checklists for practitioners about the procedural requirements for briefs and appendices. If lawyers simply follow these guidelines, the chances that the court will reject a filing for nonconformity are reduced dramatically.

Similarly, the Pennsylvania Rules of Appellate Procedure specify the contents and format for appellate briefs and other filings, and the various courts’ internal operating procedures provide additional guidance. All a lawyer needs to do is create a checklist from these rules to avoid filing a brief with some critical aspect missing.

Checklists can also help with firm management. Whenever a new employee begins working, or one leaves your firm, you should have a checklist available so you are prompted to remember that you have completed all of the necessary paperwork, changed the relevant passwords and taken all of the other steps to assure that you haven’t left any ends loose.

For lawyers, the key is in the automation of everything you do. I admit, I was a late adopter of checklists. I believed that I could remember everything, and that because I had done everything so many times for so many years, there was no way anything could be overlooked. But there are problems with that type of self-confidence.

First, it is just not true that we remember everything. Consider when you travel. For me, it seems that I always forget something, and no matter how many times I insisted that I remembered to pack everything (from toiletries to chargers to belts and ties), when I arrived at my destination, something was still at home.

It took the persistence of my associate and my wife, coupled with a few “oops” moments, before I reluctantly acknowledged some realities.

First, we are all human, so we can’t possibly remember everything. Second, unless you work in a vacuum, just because you know how to do something doesn’t mean that your staff and your associates know every step. Want to frustrate people? Just keep making them figure out things they should know, simply because you won’t write down every step. Third, if you use technology, checklists are simply essential.

Consider case-management software, the programs that help lawyers keep track of everything, including their calendars, deadlines and reminders. Virtually every program uses wizards (or some other similarly named form of automation) so that you can schedule and verify that you have completed every step of a project.

For our clients, these checklists have become a way of life, and they dramatically reduce stress, regardless of the type of practice. For example, if you handle residential real estate matters, you should have a checklist that reminds you about every step of the process. Similarly, if you handle estates, does your tickle system (if you even have one) remind you about the deadline for receiving a discount for prepaying the estate tax?

Or, for litigators, does your checklist prompt you to be sure that your filing complies with your local rules about the format and contents of briefs? For example, Philadelphia Civil Rule 210 specifies that every brief or memorandum of law shall be:

• endorsed with the name of the case, the court term and number;

• endorsed with the name, address and email address of the attorney or the party if not represented by an attorney;

• contain concise and summary statements, separately and distinctly titled, of the following items in the order listed: (1) matter before the court; (2) statement of question(s) involved; (3) facts; (4) argument; and (5) relief requested.

Simple enough? Sure, but I can’t even count the number of filings I see in which the briefs do not include each of these sections and on which lawyers fail to include their email addresses. If they had read the rule, and created a checklist, they would have avoided these problems.

In short, we have all made mental checklists for years, but to really do things correctly, and to avoid the specter of a legal malpractice claim, consider using checklists. They’re not just for groceries and, as one author noted, “If you’ve done a good job developing your checklist, you’re much less likely to feel like you’re forgetting something critical.” Thus, using checklists may be the easiest way to reduce stress in your practice. Give them a try.

And if you have a particularly helpful checklist, feel free to send it to me at dan@danieljsiegel.com. I’m in the process of compiling a book of checklists for lawyers. If we use your suggestion, we’ll acknowledge your contribution, but first we’ll make a checklist so that we remember to do so. 

Daniel J. Siegel is the principal of the Law Offices of Daniel J. Siegel, which provides appellate, writing and trial preparation services to other attorneys, as well as ethical and disciplinary guidance. He is also the president of Integrated Technology Services LLC, a consulting firm that helps law offices improve their workflows through the use of technology.