The roads of litigation are similar to how a car handles: the underlying theory of the case is the engine which provides the energy needed to maintain the case, the transmission is akin to the speed of discovery and case progression, and the steering represent the different litigation angles an attorney can take to bring the case to its destination. When looking to streamline a litigation practice, a law firm should consider what the function of each portion of the civil litigation process serves, and how it can accelerate or decelerate a case, similar to what each part of a car serves.
The engine is the heart and driving force behind your litigation practice.
At the heart of any litigation matter is the team behind the case which makes it happen. The attorneys deliver the legal strategy, while the paralegals and legal assistants are the key players which help propel the case forward through substantive and administrative work. An engine is loosely analogous to WA RPC 1.1 Competence and RPC 1.3 Diligence. A client may have a great legal case, but it is only as great as the team behind it willing to propel it forward. Just like a real car engine, the “engine” of one’s litigation matter must always be on and never falter, since legal professionals have a duty to engage reasonable efforts to progress a client’s matter forward. While modern-day engines generally do not need constant maintenance, a legal team should endeavor to explore new ways of performing tasks, utilize technology to increase efficiency, and attend continuing legal education matters to help develop their professional expertise and keep the engine going strong at maximum horsepower.
The transmission is how fast you progress through the stages of litigation.
An engine only spins as fast as its max revolutions-per-minute, but the mechanism which transfers the power to the wheels is the transmission which heavily relies on proper driver input and gear ratios. The civil process akin to the transmission is how fast motion practice and discovery practice occurs: take a lax approach and you’re driving in the lower first and second gears. Engage in more intense practice such as dispositive motions and depositions, and you’re cruising the case right along in third, fourth, and fifth gears. The main takeaway here is to progress through the case only as fast as your client indicates they want to do, and only if it’s reasonable. To speed up the progression of a case, consider standardized templates, automated case management processes, standard list of discovery and deposition questions, and a brief bank which consists of the common legal arguments made for common motions such as CR 12(b)(6) motions to dismiss, and CR 56 summary judgment motions.
The steering is how you change tactics or deviate from a particular path.
While we wish that all the roads of litigation and life were straight and unencumbered, it becomes necessary to deviate from the path every once in a while, and to navigate around potential obstacles, similar to a car’s steering. Attorneys control the legal strategy of the case and often must have flexibility and prepare for all contingencies. If a discovery priority switches mid-way through a case and requires investigation of other facts, the switch alone should not derail a case. However, be aware that if you turn too quickly, you might end up in a proverbial ditch and lose track of the case. In order to accommodate for these unexpected developments, when constructing the theory of the case ask yourself how flexible the claims are, and would the case theory still survive if one or the majority of the claims are dismissed? What would happen if counter/cross/third-party claims were asserted, and how quickly would the legal team be ready to address those issues? Having control over your case is paramount, and you should always attempt to drive the case forward and not have the case drive you.
Driver assist aids are the “technology” which allow you to navigate changes in direction.
Rules & procedural know-how helps you get from point A to point B. Whereas steering helps control the general trajectory of the case, driver aids such as automatic stability control and adjustable suspension helps to make the ride more comfortable and plan for contingencies. With respect to a litigation case, knowledge of the civil rules of procedure and how to access the jurisdiction’s court system is the greatest aide from the practitioner’s standpoint. While courts prefer to resolve cases on the merits, in practice cases are often won or disposed of on procedural technicalities. The individual who knows the rules of civil procedure and evidence best will come out ahead, similar to the driver who knows when to engage driver assist aids. Knowledge of key civil rules and evidentiary rules can help streamline a case by avoiding procedural hiccups and mitigating against the risk of claims dismissal.
The flexibility of your systems is the “suspension”.
The resilience of the team to deal with motion practice and unexpected developments is similar to a car’s suspension system. Sure, there may be bumps to any civil case, but how well the legal team can adapt to change is another crucial aspect of the legal profession. While we like to think that we are all doing a perfect job, perfection is impossible in this profession, which is why it is key to build in flexibility and acknowledgement of the potential for mistakes when conducting a case. Clients don’t realistically expect perfect legal representation: they expect competent and diligent representation. Making sure your team is flexible based on the needs of the case in the long run will pay dividends in the end.
Most importantly, keep the “heart” of your litigation practice running and well-oiled.
As mentioned above, a litigation team or practice must be running in good condition in order for it to go anywhere. Similar to keeping an engine lubricated and running, make sure your litigation team has the support it needs to perform their jobs: whether it be timely responses by the supervising attorney to the team, or clear communication by legal staff as to the specific processes being completed. Communication breakdowns are the most severe, but often correctable mistake that litigation practices suffer from. These can be easily resolved with communication systems, status reports, proper delegation of authority, and overall satisfaction with each other as team members.
When was the last time you checked your car’s oil level? How satisfied are you with its horsepower and turning radius? When was the last time you check your litigation team’s communication processes and knowledge of civil rules? Litigation teams and cars are very similar in that they both help individuals get from point A to point B, but like any other system, they must be maintained in order to be streamlined and provide the maximum benefit for your practice and your client.