Quality, Process Versus Outcome, Commodification and the Business of Litigation Today

This is the second part to a post from a week ago in which I made a note to the CBA legal project management panel and issued a three-question survey.

To follow up, I’ll use the survey to identify issues relating the current pressures how we litigate on behalf of our clients. I have not yet developed strong views on this subject matter, so will simply present the survey results and some thoughts about each question.

As I did last week, I use the term “litigation” in the broad sense, to refer to any form of representation in an adjudicative process.

Question 1 – Can a litigator elect to do a task with differing degrees of quality?

When Barbara Boake of McCarthy’s asked me this question at the CBA I told a story about producing a factum right on my two-day budget and feeling quite confident about it. Then, I explained, I spent a whole extra day on it and made significant further advances. I raised this as proof that the quality of advocacy varies with a key input – time. The survey answers seem to validate my view.

Of course, the answer is not that simple. Commenter Paul Dawson explains:

True, but “can” doesn’t mean “may” or “should”. It just means that there are degrees of quality. Mediocrity is faster, cheaper, and good enough – until it isn’t. Also, quality could mean different things: excellent legal analysis and rigorous research might be considered high quality, but it can be disproportionate to the client’s objectives or the scope of the dispute.

Thanks for the comment Paul. I think you’re right. As Andrew Terrett explained at the CBA, quality is a relative concept that relates foremost to the requirements (or detailed objectives) of the project. To say that a three day factum is of higher quality than a two day factum rests on some assumptions about stated requirements. This leads to the next question.

Question 2 – What’s a litigator paid for anyway?

As the CBA dialog continued, I stated that it is very hard to identify the objective differences between a two day and three day factum in any meaningful way. Point first writing? McGill Guide citations? Less than one typo for every ten pages?

The difficulty in establishing meaningful requirements for good advocacy is a major challenge for managing litigation with project management methodologies. Good objective requirements are a necessary basis for planning and management.

An audience member replied, “What about winning as a requirement?” I created the next survey question in response.

To “maximize the probability of achieving a successful outcome” is a valid objective requirement. It is likely the sole requirement applied by many litigators for many years. It’s not a very useful requirement for project management though. It’s too big and too vague to invite control, and might tip the balance too far in favour of zeal when reasonableness and “proportional positioning” is more called for, now expressly in Ontario.

To better control the costs and risks of litigation through project management, we have to break the litigation process down and define requirements by activities that are more amendable to control. Meeting the (costly) legal requirement to produce records is an activity that’s well suited to project management; apparently writing a factum is not.

Question 3 – What do clients buy?

The factum scenario also got me thinking about commodification. If you can’t grade the quality of a factum based on objective criteria (in the manner in which you can grade the quality of a piece of meat), how can the service we perform in producing facta be a commodity? Here’s the related survey question.

For more reason than one, I was happy to see that “talent, reputation and record” won out over “price/efficiency.” My interest in a profitable practice aside, I’d rather be a professional that applies the artful skill of advocacy than one that “processes” disputed matters. I imagine many other litigators feel the same way, which could another reason be why selling project management to litigators is hard.

This is no excuse for failing to reckon with good process. Some aspects of litigation (production, again) demand it and some matters that are more mechanical than others might benefit from it. Most significantly, the proportionality principle demands that our focus be on process (as opposed to outcome) more than ever before.

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Thanks to everyone who completed the survey. Do you have a view? Please share it!

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