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Industry News Zen And The Art Of Litigation: Resist The Temptation To Do Unneeded Work

By Matthew W. Schmidt

As everyone knows, Infinite Jest has the best interpretation of Marlon Brando:

Jim, Marlon Brando was the archetypal new-type actor who ruined it looks like two whole generations’ relations with their own bodies and the everyday objects and bodies around them. . . . Your mother is of that new generation that moves against life’s grain, across its warp and baffles. She may have loved Marlon Brando, Jim, but she didn’t understand him, is what’s ruined her for everyday arts like broilers and garage doors and even low-level public-park knock-around tennis. . . . Jim, she never intuited the gentle and cunning economy behind this man’s quote harsh sloppy unstudied approach to objects. . . . The way he studied objects with a welder’s eye for those strongest centered seams which when pressured by the swinishest slouch still support. . . . His was a tennis player’s dictum: touch things with consideration and they will be yours; you will own them; they will move or stay still or move for you . . . Teach you all their tricks. He knew what the Beats know and the great tennis player knows, son: learn to do nothing, with your whole head and body, and everything will be done by what’s around you.

The context is the protagonist’s father, James Incandenza — famous for his love of Wild Turkey and creative use of a microwave — receiving a lecture from his father. The intended topic is tennis, but Jim’s father is first distracted by his son’s careless handling of the family garage door:

Jim not that way Jim. That’s no way to treat a garage door, bending stiffly down at the waist and yanking at the handle so the door jerks up and out jerky and hard and you crack your shins and my ruined knees, son. Let’s see you bend at the healthy knees. Let’s see you hook a soft hand lightly over the handle feeling its subtle grain and pull just as exactly gently as will make it come to you. Experiment, Jim. See just how much force you need to start the door easy, let it roll up open on its hidden greasy rollers and pulleys in the ceiling’s set of spider webbed beams. Think of all garage doors as the well-oiled open-out door of a broiler with hot meat in, heat roiling out, hot. Needless and dangerous ever to yank, pull, shove, thrust.

Like Jim and his garage door, litigators far too often give in to the temptation to do unneeded work. This not only can cost clients unnecessary fees, but also hurts results by taking your attention and that of your team away from productive work.

Start By Distinguishing What is a Problem and What Isn't a Problem

Most unneeded work is caused by a lack of reflection, a failure to adapt to the situation, or a refusal to make tough decision. Unless they’re taking on more work than they can properly handle — pulling an all-nighter on a brief before an unrelated court appearance is a bad idea — the problem is rarely that litigators do too much work, but that they do the wrong kind of work.

I remain a vocal proponent — sometimes it seems like the only vocal proponent — of the billable hour, because it helps align the incentives of litigator and client. All else being equal and subject to diminishing returns, nearly all substantial and active litigations can benefit from additional work. Briefs are nearly always produced under deadlines, are never perfect, and could always benefit from more time. There’s always a better case to be found, wording to improve, or simply the type of idea that comes suddenly after you’ve been mulling over a particular issue for a week. Anyone who re-reads a brief during oral argument prep and doesn’t notice things they’d like to change is either a liar or has shamefully low standards.

Obviously, there comes a point where you must stop. Unlike novelists, lawyers rarely have the luxury of being able to focus solely on a brief for days or weeks, put it in a drawer, and then take a fresh look at it a year later. We have limitations both within the case (every brief has a deadline) and due to other client obligations (good lawyers are in demand, and it rarely makes economic sense for a client to buy out all their time to focus 24/7 on a single case). At a certain point, the brief needs to be done. If everything works out as it should, then all the limitations balance out and that point is roughly where diminishing marginal returns mean that it’s in the client’s overall best interest to tie things up.

If you’re a client — especially in the types of complex commercial cases my colleagues and I predominantly litigate — you usually want your lawyer to err on the side of spending a little too much time on something than too little. Even beyond the incremental improvements, it’s often amazing the insights that arise after spending focused time on a particular argument or fact pattern. And you want your lawyer to have an incentive to spend that extra time.

Does this actually have an effect? I have no way to know for sure, and I doubt many lawyers are consciously calculating the expected value of the increase of their contingency fee versus the opportunity cost of doing other work when deciding whether to do an additional read through of a brief. But we all ignore fundamental aspects of human psychology at our peril, especially in situations where a slightly better argument may make a difference of millions of dollars.

To be clear, risk sharing — for instance in the form of the blended fee arrangements my firm often does, combining a contingent fee interest with a reduced hourly fee — is an even better alignment of incentives. But for complex commercial disputes, an hourly component of some sort is usually in the client’s best interest.

Why Litigators Do Too Much of the Wrong Kind of Work

So if more work improves outcomes at the margins, then what’s the problem with lawyers doing more? The problem is that Gresham’s law also applies to work. (It has also been shown to apply to dolphin economies.)

Just as bad money tends to drive out good, so too does bad work tend to drive out good work, for the same reason you’re sometimes tempted to reach for a bag of chips instead of a bowl of broccoli. It’s easy and provides immediate feedback to just react impulsively to events. We’re wired towards action bias and to have a strong desire to do something immediately in response to events. And possibly we’re all losing our ability to concentrate due to the constant rush of input from smartphones.

As a result, there’s very often a temptation to flail around rather than considering the situation; to rely on ossified routines; and to try and do everything rather than deciding on a specific task. This is exacerbated as attorneys rise in seniority, both because more senior attorneys have more valuable uses for their time and because the more subordinates you have, the easier it is to have lots of people working on work product of questionable value.

Identify What You Are Doing Wrong

Unnecessary work product is the most common result of misdirected effort, but unneeded work is highly context dependent, and better identified by its immediate causes than its results.

First, unneeded work is often caused by lack of reflection. While planning can itself turn into unnecessary work — you don’t need three meetings and a formal memo before making most decisions — if you’re not considering your actions before you do them, something has gone wrong. Your clients are primarily paying for your judgment, and if you’re not using it, you’re not providing the service that they paid for.

Or put another way, if you can’t explain it, you haven’t considered it enough. Many times you simply don’t have time to consider — you’re in court and you have to rely on your gut to make a decision; or there’s a deadline and you need to decide what part of an oversized brief to cut — and that’s of course necessary. But it’s a necessary evil, and not something you should strive to emulate when you have more time. Rarely are you forced to start a sizeable project without having time to consider your options. If you find yourself starting a sentence with the words, “I can’t explain why, but I think,” then unless the reason you can’t explain is because of an immediate time pressure, you need to stop and reflect some more until you can explain.

Second, unneeded work is also often a failure to adapt to the situation. Many lawyers fall into the trap of always trying to fit problems into boxes or having set routines and rules they need to follow. But litigation is no place for rigidity, and you should leave your routines at home. Different problems have different solutions.

While identifying similarities between situations and identifying lessons you’ve previously learned is highly valuable, it’s not highly valuable to just blindly do the same thing. No two cases are the same. If you actually are encountering the exact same situation on a regular basis, then you’re in a rut that will ultimately dull your judgment to the point where you’re useless, and you need to make serious life and career changes immediately.

When I’m writing a brief, drafting an agreement, or creating any type of work product, I always try to do something different than I did the last time. Maybe it’s a small thing like how terms are defined or how I handle Bluebook edge cases, or maybe it’s a larger difference in how I approach the project. That’s how you find things that are better than what you’re doing now, plus you force yourself to consider a little more carefully how this situation is different. If you’re just going to do the exact same thing every time, you should do your clients a favor and tell them they’d be better served by LegalZoom.

Third, much unneeded work is caused by an inability or a refusal or make tough decisions. No matter how many resources you have at your disposal, you can’t do everything, and you certainly can’t do everything well. Doing one project means that another project isn’t being done, or at least isn’t receiving as much focus. You need to be ready to identify what is not moving the ball forward, be willing to cut it, and be ready to deal with the consequences. (Sometimes the decision was the wrong one. If that never happens, it doesn’t mean you make great decisions, it means you aren’t making decisions at all.) Otherwise you’re just spinning your wheels.

Fixing Your Problems

If you prefer to view things more positively, you can avoid unneeded work by focusing on identifying what is good work.

Good work is always focused absolutely on the goal, which is not to create the best chart, but to win. Work that makes the goal more likely to happen, or to happen in a better way, is good. Work that doesn’t do that is a waste of time.

But more precisely, the goal isn’t to just get the best result, but getting the best result for the least amount of time and effort. Yes, winning your client a great recovery through years of hard-fought litigation is a fantastic result. But those years of hard-fought litigation are simply necessary roadblocks to the result. A far better result would have been if your adversary had paid your client the same amount immediately after you were retained. That’s not a semantic difference: Enjoying the journey instead of the destination is fine as life advice, but a bad way to decide priorities in a complex litigation. Your client is probably not enjoying the ride as much as you are. No one’s giving points for effort.

Instead, like Brando, your job is to study the situation and then take the steps that will achieve your client’s goals with the absolute minimum of effort.

Start Fixing Your Problems Today

According to legend (or at least Sidney Lumet), Brando eventually became so jaded with the failure of anyone to recognize the subtlety of his work that he began testing directors. He’d give a scene two takes, once giving it his all and once phoning it in. If the director recognized the difference and called Brando to task for the lazy take, Brando would put in a great performance throughout the film. If the director couldn’t tell the difference, Brando would continue phoning it in.

Luckily for you, being a litigator is far less subtle than being Marlon Brando. You can measure your result when your client wins money or doesn’t have to pay money, and your work is measured in daily time entries and tangible work product. While measuring those in some objective sense may not be possible due to outside factors — for instance, no one outside a case team can likely evaluate whether something was a good use of time — you at least have a clear path before you.

So starting today, stop wasting your time. Make an effort to stop, evaluate the situation, and determine the best path forward before carelessly trying to yank that garage door open.

Source: Above the Law, May 11, 2018 (