In-house legal departments want legal providers to approach projects from a business perspective. To do this, take a cue from cost controls used by legal procurement such as legal project management, pre-matter scoping, invoice auditing, and eAuctions. Litigation practitioners can implement these same cost controls in the litigation services they provide to their clients. This post is Part Two of a Two Part Series that focuses on pre-matter scoping to control costs. Click here to read Part One.
Buying Legal Counsel (login required), an international trade organization that works with professional buyers of legal services, recently released its 2018 Buying Legal Services Survey (login required). The Survey highlights procurement goals, decisions, and cost controls used by businesses, their in-house counsel, and legal procurement office when they seek out legal services. One of the cost controls used by procurement professionals is pre-matter scoping. This post discusses how pre-matter scoping can be integrated into your litigation practice.
What is pre-matter scoping?
Pre-matter scoping is arguably the first phase of legal project management, which we briefly discussed in Part One of this series. It requires collaboration between your litigation team and your client, helps to identify your client’s priorities, manage expectations, invite transparency, and provide some predictability in litigation expenses. It can be applied at every stage of litigation, including early case assessment.
Why does pre-matter scoping matter?
Like legal project management, many clients want pre-matter scoping but many attorneys don’t do it (because they do not understand it) or they don’t do it well (even if they think they do). According to Buying Legal Counsel’s survey, 46 percent of survey respondents said they use pre-matter scoping and 41 percent plan to use it in the future. But why?
Pre-matter scoping helps to ensure that you and your client are on the same page. This can mean the difference between keeping or losing a client.
Pre-matter scoping also matters because it allows you and your client (or potential client) to determine what work should and should not be done for any given litigation case. It should promote efficiency and lower litigation costs. In the end, it should strengthen the relationship between you and your client.
What does pre-matter scoping involve?
According to Clariżen, a project management software company, pre-matter scoping generally involves the following: (1) drafting a project framework, (2) drafting a statement of project objectives and stating what the objectives are expected to produce, (3) identifying limitations, and (4) identifying assumptions.
Drafting the litigation project framework
When drafting the litigation project scope, the framework should include a list of litigation goals, deliverables, project stakeholders and their functions, tasks, schedules and deadlines, and costs.
The deliverables should be services and products that will be used to satisfy the objectives. This can include pleadings, discovery, briefs, motions, responses, depositions, expert reports, etc. Your deliverables list may change as litigation progresses. Deliverables are likely to be similar for many cases, with some variations based on the issues involved.
Along with deliverables, you and your client should also draft acceptance criteria and exclusions regarding your deliverables. Acceptance criteria should outline detailed expectations about what your litigation team is delivering to the client. For example, will your service include a free advice hotline that your client can call, or will everything be billed at an hourly rate? Will your representation include appeals or does it end at the close of trial?
Your list of project stakeholders should identify specific people, or job titles, who will be working on the litigation (lead counsel, senior/junior partners, associates, paralegals, interns etc.) as well as those who are responsible for approving or monitoring tasks as the case progresses.
Legal project managers should identify the roles and responsibilities of the following: the client (entity or individual names), other members of the client’s team who will act as a point of contact for certain matters (for example, in-house counsel, legal procurement officer, CEO, etc.), project managers from each partner or entity involved in the litigation, vendors who will be completing deliverables (such as legal service providers, jury consultants, litigation advisors, court reporters, expert witnesses, notaries, etc.), witnesses, evidence custodians, and any other groups (paralegals, IT support, data managers, law firm partners) who will not be actively involved in the project, but need to be informed about it.
Drafting a statement of litigation objectives
This is likely the easiest part of pre-matter scoping. The statement of litigation objectives states the purpose of the litigation and the goals or results that litigation is supposed to achieve. The basic objectives are not likely to change over the course of litigation.
If you represent the plaintiff, your litigation objective may be to win at trial or settle a matter at a certain price point. If you represent the defendant, your litigation objective may be to win at trial, minimize damages, or minimize losses through settlement, or to get through the trial while avoiding bad press.
Identifying limitations includes listing any resources or technology related issues that may limit the scope of litigation. Resources include monetary constraints, personnel, and time. Technology can include whether or not your litigation team uses eDiscovery, project management, or data analytic software or case presentation tools.
Identifying assumptions will usually require you to look at comparable cases to the one at hand. According to the International Legal Technology Association (ILTA), you should consider (1) how many hours you spent on similar cases, (2) what deliverables were required for similar cases, (3) how the current case you are trying to bill for compares to historical comparable cases.
Assumptions may include the number of depositions you may have to take, number of witnesses you plan on using, the number of days in trial, whether expert witnesses are required, etc.
As mentioned above, pre-matter scoping requires collaboration between your litigation team and the client. It means a lot of planning up front, but it is designed to help you stay focused as litigation progresses.
Do you or your firm practice pre-matter scoping? If so, please let us know!
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Attorneypreneur, writer, technologist. Nerdy for legaltech, politics, crypto, cybersecurity, innovation. Presently in-house at Williams & Brown. Former adviser at Baylor Law, and founder of two technology and legal consulting companies. @JoshuaWeaverEsq