Litigation and disputes of all types have been rising since 2020. According to Norton Rose and Fulbright’s 2023 Annual Litigation Trends Survey^[1], a majority of corporate counsel surveyed in late 2022 expected all legal disputes to stay the same or increase, and nearly half of all respondents expected lawsuits to increase in 2023^[2]. At the same time, companies are implementing measures to reduce expenses, including overall legal spend, in response to economic, regulatory and operational pressures stemming from COVID-19 and other historic weather and political events. Of particular concern to in-house lawyers is the increasing attention on the amount spent on outside counsel, most especially outside counsel engaged to handle litigation. As a result, in-house lawyers are under more pressure to handle more matters internally. For in-house litigators, this creates a need to quickly and appropriately assess claims to determine whether to spend precious resources taking a case to trial or to settle the case so resources can be reserved for those cases the corporate client deems more appropriate. This can feel like a herculean task.

Richard Susskind, a British author, speaker and independent advisor to international law firms and national governments, recognized in his book, Tomorrow’s Lawyers – An Introduction to Your Future, that most general counsel and in-house lawyers believe their primary responsibility is legal risk management.^[3] As Mr. Susskind continues in Chapter 7 of the book, “[i]n-house lawyers are faced, on a daily basis, with a barrage of requests, problems, and questions from across their organizations … while some of these inquiries merit serious legal attention, others assuredly do not. The hope of most GCs is that they can organize themselves to become more selective; that they can move from being excessively reactive to being proactive. In other words, their job should be to anticipate problems before they arise. The focus should be on avoiding disputes rather than resolving them.”^[4] This shifting focus from reactive to proactive demands in-house lawyers to “become increasingly systematic and rigorous in their management of risk” and utilize “sophisticated tools and techniques to help them.”^[5]

For example, in-house legal departments and law firms across the country are applying project management tools and concepts developed in other fields to the provision of legal services, including litigation. This article will outline key areas of project management, discuss implementation of project management principles in the in-house legal department and highlight risks and impediments to the utilization of project management in legal settings.

PROJECT MANAGEMENT, GENERALLY

Although various project management tools, processes and systems have been developed over the past few decades, all project management involves six key areas[6]:

• Development of a more thorough understanding of the project/matter at the outset, especially as it relates to understanding the client’s situation and expectations. This involves beginning each matter with an in-depth analysis of the key influencers, or stakeholders, affecting the matter. This analysis drives the understanding of the client’s expectations, individuals who will affect the direction or approach to the matter, the types of communications that will be needed during the matter, the budget and more.
• Enhanced communication with key stakeholders in the client organization and with the project team inside the law firm throughout the matter, but especially at the beginning, to define criteria for success, limitations on the matter, budget/cost expectations, etc.
• Development of a scope of work statement at the outset of the matter that defines what is in scope and what is out of scope for the particular matter. The scope of work, combined with an assessment of risks that can affect the ability to meet the client’s objectives and the assumptions upon which the scope and budget are based, enable a matter team to ensure they are on the same page with clients and to manage the matter and budget accordingly.
• Development of a template for how the work will be done so a more accurate budget can be developed, and the matter can be managed to that budget.
• Ongoing monitoring throughout the life of the matter, including budget to actual key milestones for progress with the client’s objectives, changes in scope, risk or influencers and more.
• Evaluating a matter at the end to identify “lessons learned” and how similar matters with the same or different clients can be improved in the future – resulting in future efficiencies and/or improved results for the client.

LEGAL PROJECT MANAGEMENT

Legal project management (LPM) provides methods and techniques to address concerns about the time and resources required for legal matters. LPM can be defined as:

• A proactive, disciplined approach to managing legal work that involves defining, planning, budgeting, executing and evaluating a legal matter;
• The application of specific knowledge, skills, tools and techniques to achieve project objectives (the client’s and law firm/legal department’s); and
• The use of effective communication to set and meet objectives and expectations.[7]

 Benefits of LPM

When integrated into legal matter management, the key concepts of project management create benefits for the individual lawyer, law firm and legal department. Benefits to the individual lawyer and law firm include improved profitability for the law firm and reduced cost to the legal department, greater client satisfaction and enhanced risk management. Benefits of LPM to the individual lawyer and law firm also include a greater differentiation from competitors and improved knowledge management.[8] Benefits to the legal department and client include greater predictability, a more managed approach to legal work, on-budget and on-time work, greater efficiencies and enhanced quality of work.[9] One of the most impactful benefits to the individual lawyer, law firm and legal department/client is the creation of a collaborative environment among the legal team realized in the form of improved teamwork, enhanced lawyer development and the resulting improvement in morale.[10]

LPM can be especially beneficial when applied to litigation. LPM imposes the discipline required to conduct early case assessment, short-term and long-term goal setting, a budget and an overall game plan for conducting the litigation, all of which is then approved by the in-house legal department and/or client and outside counsel and updated or modified as the litigation progresses and the “inevitable vagaries of litigation set in.”^[11]

Key Differences Between LPM and Project Management

While LPM borrows processes and systems from traditional project management, which has been employed by corporate America for decades, there are some key differences simply because of specifics required to practice law, statutory and court-ordered timelines. LPM is focused on anticipating risks through reliable estimates, greater cost control and enhanced communication. LPM also requires more flexibility in project plans due to the fact that both internal and external parties are working together to manage matter-specific deadlines on top of client and law firm schedules. Traditional project management deals with traditional business concerns such as adequate staffing, failure to meet deadlines, budget constraints and contractual obligations. LPM helps in-house legal departments and law firms accommodate resources efficiently while dealing with roadblocks.

IMPLEMENTING LEGAL PROJECT MANAGEMENT

There is currently no standard framework for LPM. However, the Legal Project Management Institute’s (LPMI) LPM framework, developed by LawVision Group, provides a useful tool for understanding the critical LPM concepts and approaches. Pursuant to the LPMI framework, there are four phases of LPM: engaging, planning, executing and evaluating, and closing. These iterative and often overlapping phases are discussed in more detail below.

The Engaging Phase

The Engaging Phase is the first stage of LPM and can also be referred to as the Initiating Phase in organizations applying traditional project management. This phase is primarily focused on ensuring the lawyers and the client are on the same page regarding the details of the matter as they are known at that time. The activities and processes generally encompassed by the Engaging Phase are identifying stakeholders, setting matter expectations and parameters, and establishing initial objectives. The deliverables and work product generally encompassed in the Engaging Phase are a stakeholder analysis, a high-level matter timeline/schedule and a scope of work statement.

The Planning Phase

The Planning Phase is one of the most crucial parts of LPM. The activities and processes generally included in the Planning Phase are to determine the deliverables/work product, establish work assignments and other resources needed, develop a detailed budget, a detailed matter schedule, a communication plan, a risk management plan and a change management plan. The deliverables and work product generally included in the Planning Phase are a list of specific deliverables/work product, a task plan detailing work assignments, an approved budget, an updated matter timeline and a project plan. In summary, the project plan should guide the team in the active management of the matter through completion.[12] Developing a project plan and following it should result in many benefits, including more efficient delivery of legal services.

A Note About Budgeting vs. Pricing

Development of a budget is a critical part of the Planning Phase. The corporate client’s legitimate concerns with the billable hour include the law firm’s lack of accountability and the disconnect between value and cost. Collaboration using LPM ensures better and more transparent communication with the client and the legal team on the budget. Identifying the framework for development and tracking of the budget includes determining whether to map the phases of the matter by significant scheduling milestones or by significant deliverables. A starting point is to determine whether UTMBS task-based billing codes or simply task codes will be used as the framework.

The Six Step Budget Approach can be an effective way to develop a litigation budget that the legal team and the client can adopt and execute. It is comprised of the following six steps: 1) confirm the scope of the engagement; 2) identify the framework for budget development and tracking; 3) create a playbook for the matter; 4) identify resources, rates and time estimates; 5) identify task-level assumptions, risks and constraints; and 6) collaborate with the client and implement the budget.

Rather than automatically adopting the budget as the price, the firm should identify the most appropriate fee structure and then decide on the appropriate fee level. It is these decisions that are the difference between budgeting and pricing.

The Executing Phase

The Executing Phase is comprised of two main aspects: doing the legal work for the matter and managing the legal work as a project.[13] In addition to doing the legal work, the four most important parts of the Executing Phase are dealing with changes in scope, managing communication with the various stakeholders, managing the project team and monitoring the budget.[14] The activities and processes generally included in the Executing Phase are to monitor work completion and adherence to matter strategy, acquisition of resources to perform work assignments, modify the matter timeline, communicate with stakeholders early and often, manage scope changes with client and other key stakeholders and monitor against budget. The deliverables and work products generally included in the Executing Phase are an updated matter timeline, updated deliverable lists and budget and change requests.

The Evaluating Phase

The benefits of the Evaluating/Lessons Learned Phase include the enhancement of handling of future similar matters and/or matters for the same client, even in a different area of law, and the ability of the lawyer to differentiate themselves from other lawyers by offering to have a debrief session. The Evaluating/Lessons Learned Phase is critical for gathering data about the costs of matters, changes that occurred and affected achievement of the project outcomes and issues affected by stakeholder expectations.

During the Evaluating Phase, the performance of in-house partners/managers and the firm are evaluated. Additional considerations for post-matter evaluation include the thoughts and opinions of businesspeople – how well were client expectations managed? The activities and processes included in the Evaluating Phase are to monitor scope, budget and relationships throughout the Executing Phase and after, meeting of team members to conduct after action review, revise matter strategy for future similar matters, administratively close the matter, deliver final product, archive reusable work product/create “reusable” assets and obtain final payment. The deliverables and work product in the Evaluating Phase are an updated plan and budget, change orders, final budget-to-actual, exemplars/templates and model documents saved to the law firm knowledge management system.

PERFORMANCE IMPROVEMENT

Tools used to improve design and manufacturing processes can and should be used in the LPM arena. Performance improvement tools, whether for improvement of design, manufacturing processes, project management or LPM, all boil down to four actions: analyze, search, solve and control. Using the process of performance improvement, litigation managers can determine the best way to carry out a certain kind of legal work to achieve efficiency, excellency, probability of a particular outcome and predictability.

OBSTACLES TO LPM

Lawyer personality traits that pose the greatest impediment to the effective use of LPM and process improvement are 1) abstract reasoning, 2) skepticism and 3) urgency. Abstract reasoning can cause over-analysis to the point where nothing gets resolved. Skepticism can result in over-adversarial communication style, which is counterproductive to the collaborative process of LPM as well as to process improvement. Urgency can prevent lawyers from having the patience and taking the time to work through the phases of LPM.

CONCLUSION

LPM is one tool that in-house legal departments can implement to create efficiencies in the do-less-with-more era. Even when working through the phases of LPM feel counter-intuitive, especially to in-house litigators tasked with managing increasing claims and litigation with limited resources, the discipline and rigor will result in more predictability and more efficient use of resources.

---

ABOUT THE AUTHOR

Jennifer Castillo is senior attorney and manager of litigation and claims at OGE Energy Corp. in Oklahoma City. She received her J.D. from the OCU School of Law in 2002 and her LL.M. from the Baylor University School of Law in 2022.

 

 

 

---

ENDNOTES

[1] Norton Rose Fulbright surveyed more than 430 general counsel and in-house litigation leaders in the United States and Canada in multiple industries, including financial services, energy, healthcare and technology, https://bit.ly/46I2E2W.

[2] Id.

[3] Id.

[4] Id

[5] Id.

[6] The Power of Legal Project Management, p. 36, 37 – Susan Raridon Lambreth and David A. Rueff Jr.

[7] The Power of Legal Project Management, p. 35 – Susan Raridon Lambreth and David A. Rueff Jr.

[8] Id. P. 38

[9] Id.

[10] Id.

[11] “Taming the Litigation Beat with Legal Project Management Technology,” Donald A. Loft,  https://bit.ly/3R9mA8Z.

[12] The Power of Legal Project Management, p. 99.

[13] The Power of Legal Project Management, p. 140.

[14] Id.