Legal Project Management

Once the client approves a litigation management plan (LMP) based on the early case assessment (ECA), the plan then needs to be executed over the life cycle of the case. Depending on the jurisdiction, a case may not be scheduled for trial for a year or even up to several years. Opportunities to resolve a matter favorably at an early point in the litigation with a concomitant opportunity to save substantial legal and third party expense dollars are highly dependent on how quickly the ‘hot button’ case elements and issues are developed to amass early settlement leverage.

Not only must these ‘hot button’ case elements be successfully identified in the ECA and LMP, they must be developed in the right sequence through effective legal project management.

In the military arena, there is a catchphrase: “The best laid plans don’t survive first contact with the enemy.” Although perhaps an overstatement as applied to the litigation arena; nevertheless, in every matter, there will be elements and avenues of discovery that should be de-emphasized as the case develops or even abandoned. And there will be case areas that require reinforcement and more resources.

One of the more significant causes of wasteful legal spending is a failure to adjust, adapt, and improvise case strategy and resource allocation ‘on the fly’. This potential resource drain is often the result of a hierarchical, associate leveraged litigation team structure with the trial partner largely insulated from day to day activity and relegated mostly to running team meetings.

Consider the following diagram:

The diagram above is drawn from the defense perspective. Time to trial is depicted on the horizontal axis. Obviously a case trajectory along the lines of Approach 2 would be preferable to Approach 1. Less time to trial means less expense and resources consumed.

The Plaintiff’s initial and typically most rosy perception of its case and its value begins with the filing of a complaint. The diagram depicts the Plaintiff’s initial view of case value high up on the vertical axis.

The defense objective is to change the Plaintiff’s perception so that the value attributed to the case starts to work towards at least the middle ground if not further in the direction of how the Defendant values the case following the ECA evaluation.

Different approaches to litigation can result not only in much different case duration (measured in months the case is litigated prior to resolution or jury verdict) but a much different case trajectory in terms of how soon Plaintiff begins to view their case differently and is open to resolving the matter on a more rational objective basis as opposed to an aspirational one.

Case Inflection Points & Milestones

Each case depending on how it presents has inflection points or milestones where opportunities can be created for an optimal resolution. These need to be identified in the ECA & LMP and then appropriately developed through strong execution and legal project management in the phases of the case (investigation, pleadings/motions, early discovery, late discovery, dispositive motions, trial).

Examples of inflection points include preparation of a devastating forensic or damage analysis that may markedly undermine the opponent's case and securing of critical documents or witness testimony from 3rd party sources that negate essential elements of Plaintiff’s required proof. Motion practice including both a motion for judgment on the pleadings and a motion for summary judgment may dispense with one or more legal prongs of Plaintiff’s case theory narrowing the dispute and substantially reducing case value. Submission of Requests for Admissions that obviate need for expensive discovery by sharpening the focus on what material facts are really disputed can also effectively position a case.

The skill of the firm in putting together the right LMP and then executing it through hands on legal project management is best revealed by considering the following question. Looking at a moderately complex case, what percentage of legal activities would fit within the following categories?

  • Essential to creating verdict risk (and settlement leverage).
  • Wouldn’t be used at trial, but may make it into a mediation statement as a talking point.
  • Intellectually relevant to the issues but only a small piece of the puzzle that doesn’t change the big picture.
  • Pursuit of a dead end.

Walk into a law firm’s ‘war room’ for a case that has an upcoming trial date. How much of all that paper falls into category 1 above? LMPs that for whatever reason sequence items early in discovery that would fit in categories 2-4 can place the case onto a longer and all too typical ‘Approach 1’ trajectory.

LMPs that focus early on category 1 put the case on the preferred ‘Approach 2’ trajectory.

Going back to Diagram 1 in the ECA section of this website, a flawed ECA that recommends a LMP focusing on a lot of legal activity efforts outside the optimum intersection can be economically wasteful.

Brown Law LLC, in offering alternative fee arrangements (AFAs), is not budgeting and pricing the AFA assuming a linear, inexorable, march to trial along an Approach 1 trajectory. Rather we are relying on our skill, experience, and knowledge to properly assess the case, formulate an LMP, and execute the game plan to create inflection points where best case there may be an earlier opportunity to resolve the matter favorably and worst case a much speedier path to trial with a leaner, more efficient application of resources.