The Process of the Practice
Some refer to the practice as part art and part craft. My experience tells me that everything I do as a lawyer can be reduced to a process. Intuition plays a role. Sometimes luck plays a role. But for most aspects, there is a process which if followed leads to success. Most everything we do as a lawyer is a task that can be reduced to a series of steps – a checklist. By following these checklists we not only avoid mistakes but we ensure achieving our goals, both small and large. When I teach legal skills, I invariably share the steps I follow with my audience. Taking a deposition? I have a checklist. Defending a deposition? I have a checklist. Writing an article? I have a checklist. Most lawyers, whether they are conscious about it or not, have mental checklists they follow whether it’s getting ready for a hearing, mediation of trial. They follow certain procedures when interviewing a witness, drafting a pleading or negotiating a settlement. Most of the practice is a process, and by shifting the paradigm from art and craft to process, we can improve quality, efficiency and results. If this book accomplishes nothing else, I hope it replaces your prism to one focused on process.
How Do Lawyers Learn the Practice?
It’s a common refrain among lawyers that law school doesn’t teach you how to be a lawyer. You learn to be a lawyer by being a lawyer. Most lawyers learn from more experienced lawyers, who mentor them in an apprenticeship model. Experienced lawyers teach young lawyers how to write, how to argue, how to depose, how to negotiate and how to try cases. Experienced lawyers convey their processes to their mentees. Based on trial and error, success and failures, experienced lawyers share their wisdom, which if dissected, are a series of do’s and don’ts, a collection of checklists that guide behavior and achieve results. Whether we realize it or not, we lawyers teach and learn through checklists. That’s how the military does it. That’s how fortune 500 companies do it. They do it because processes work, checklists work, step-by-step guides work. They’re tested, provide consistency and evolve to address changes. Processes and checklists have a proven track record. We lawyers learn the practice by following others’ checklists or developing our own.
How Do Lawyers Improve?
We lawyers get better at being lawyers by learning from others, learning from our own experiences, CLE, publications, webinars and seminars. When we reflect upon memorable advice, articles or presentations they generally convey “how to do X,” which adds one or more steps, or modifies one or more steps, when performing one or more legal tasks. I remember learning how to get an adverse witness to say “yes,” how to develop trial themes and how to prepare for trial. Whether conscious or not, we grasp onto the way others to do things and make their processes our own, or modify our processes to reflect theirs.
Reducing the Practice to a Process
It sounds blasphemous to convert a trade into a process. But that’s what has happened to many artisanal careers. The assembly line transformed the auto industry, improving quality and reducing costs. Most manufacturing today is a process that incorporates the best of man and machine to make better products in less time and for less money. Much of the practice can be reduced to a process. Business development can be reduced to a process. Client relations can be reduced to a process. Trying a case can be reduced to one too. If there is a way to do your job better with less effort and better results, why not explore and pursue it? Viewing our profession through the prism of process will improve customer service and work product. The profession isn’t so sacrosanct to ignore the value of pursuing and implementing process. It will be better for us doing so.
Reducing the Process to Checklists
Once you’re committed to the practice as process, the next logical step is to reduce the process to checklists. If you agree that you will be a better trial lawyer by reducing trying cases to a process, list all the tasks you perform as a trial lawyers and reduce each task to a series of to dos, one to do leading from the last into the next, which when followed, improves efficiency and quality. This book will do the heavy lifting for you and reduce most every legal task into a checklist. This doesn’t mean you shouldn’t create your own. Reducing a task to its basic elements, listing them in order and studying how individual steps can be improved upon to improve upon the performance of the overall task is a great teaching tool. It’s akin to teaching mechanics how to disassemble a car, part by part, and put it back together. This reductionism and reassembly makes you better at your craft.