If You Are Not Using Checklists, What Are You Waiting For?

Before leaving for the Amazon, Nicole left an article for me from the Illinois Bar JournalThe Checklist Manifesto for LawyersIt discusses Atul Gawande‘s incredible book, The Checklist Manifesto.  The IBJ article is not special, but Gawande’s book is a must read.  Many years ago, I bought copies for everyone in Valorem and we became disciples.  When I wrote Still thinking: More things I think I think in 2014, I lauded checklists and Gawande’s book.  Nicole’s note to me was “They are only a few years behind!”  It surprised me that in this day and age, when efficiency is become so important and firms need to lower they cost of production on matters being handled on fixed fees, firms still have not enthusiastically embraced the power of checklists and that it was worthy of an article to mention them.

Actually, it doesn’t surprise me.  But it does baffle me how these firms continue to operate.

Like doctors and airline pilots, lawyers should use checklists to avoid errors and improve efficiency.

Systems, processes, and checklists all critically important to a successful law office
By Kerry M. Lavelle
The Bottom Line – June 2017

In his bestselling book The Checklist Manifesto: How to Get Things Right, physician and New Yorker writer Atul Gawande argues that checklists are essential to reducing errors and increasing efficiency. He points to the airline industry’s reliance on flight-related checklists – and its remarkable safety record – as evidence of the power of checklists to make processes work, and argues that the medical profession should expand the use of checklists to save lives and improve outcomes.

“The natural extension to the legal field is that lawyers must use checklists as much as possible,” writes Kerry Lavelle in the June issue of The Bottom Line, newsletter of the ISBA Standing Committee on Law Office Management and Economics. “For example, why not have a definitive checklist for a residential real estate closing? A commercial real estate closing? An asset purchase agreement? Stock purchase agreement? Commercial lease review?”

Teaching tools. Nor is the value of checklists limited to transactional processes, Lavelle writes. “Imagine having a compelling and detailed checklist, or litigation handbook, specific to your firm’s [litigation] ‘process’ encompassing the local rules where every new attorney and attorney thereafter would need to understand in the process for litigation,” he writes.

The handbook would actually be an assemblage of checklists for various aspects of a lawsuit. “For example, there may be a certain process to make a determination whether or not to file a motion to dismiss (under what specific rule?) or motion for a bill of particulars,” Lavelle writes. “What is the strategy behind the difference? Is there a difference in your checklist when you are the plaintiff? Or the defendant?” In addition to reducing errors, “checklists are also great teaching tools, and make for far more thorough lawyering,” he writes.

He illustrates that point with the example of a checklist-driven lease review. “Imagine reviewing a lease prepared by the landlord on behalf of your client, the tenant,” he writes. “The lease may be completely silent on tenant friendly and necessary clauses such as use of common area, a non-disturbance agreement, the allocation of insurance requirements, and how to calculate the ‘lease year.’

“[A]s you are reading the lease, you would have to rely on your memory to catch all the subtle nuances that need to be addressed for the benefit of the tenant,” he writes. “However, if you are reviewing the lease with a checklist in hand, you would be able to simply identify all the clauses that are missing from the lease that you would want incorporated into the lease for the benefit of your client….”

Removing the memorization factor. When it comes to drafting, attorneys shouldn’t rely on their memories, Lavelle says. “You should not be held to the standard of memorizing what every legal document needs to contain. Checklists take the memorization factor out of document drafting and complex litigation and leaves the critical and strategy thinking to the attorneys.”

And checklists are great for practice management, not just substantive law. “For example, [consider using] human resources checklists, financial checklists for bank reconciliations and trust accounting, internal processes and procedures for opening files, closing files, disengaging with clients, mail, phone etiquette, time keeping, and other similar areas,” Lavelle writes.

Checklist creation is one of those nonbillable sharpening-the-saw activities that pays dividends down the road, he writes. “Clearly creating a checklist takes time, but it is an investment in your law office to grow the future generations of lawyers and administrative assistants in your office.”

If You Are Not Using Checklists, What Are You Waiting For?