Why It's So Hard to Move Cases
What is the relationship of dependent events and statistical fluctuations? What does that mean? Who cares? And what does this have to do with running a law firm?
What is a dependent event? An event that is dependent upon another event occurring first. A has to be done before B, which has to be done before C, which will lead to D. You can’t get to D, before A, B and C are done. These are dependent events. Do we have dependent events in law firms? Sure do. You can’t get an economist’s reports before you have the costs of the future medical treatment and the vocational report. That's a dependent event. You can’t get a vocational evaluation until you have all of the medical records and work restrictions. That’s a dependent event. You can’t get the medical reports (at least they won’t do any good) if the client hasn’t reached maximum medical improvement or at least the treatment stabilizes out. That’s a dependent event.
What’s a statistical variation? Is the difference in the amount of time an action actually takes as opposed to what the statistical average is. For example if a task take ‘about a week’, some will be done in seven days, some in nine days, some in five days and so forth. The statistical variation would be the difference between the actual time and the expected time. And yes, we have statistical variations in law firms.
What is the relationship between dependent events and statistical variation? I was aware of both of these phenomena, but had given absolutely zero thought to their relationship. I was reading The Goal by Eli Goldratt where they discuss the relationship of these two. I had always assumed that statistical variations evened out over a long run. Some would be short and some would be long, but they would even themselves out.
In reality, what happens isn’t an averaging out of the fluctuations in the various events, it’s an accumulation of the fluctuations. And mostly it’s an accumulation of slowness because dependency limits the opportunities for higher fluctuation. As a simple test in the book he created a production line with six children rolling a die and whatever number they rolled on the die the first child would put on the table in front of him, then everyone else would take whatever number they rolled from the previous child. A -> B -> … Of course, you would expect the number of ‘finished products’ to closely match the statistical average of 3.5 (half way between 1–6. 3 is halfway between 0–6). But what happened was the further down the chain he went, the more and more behind they got. The more times they rolled the die, the further the last participants got. That’s because if E rolls a 5 and there’s only 2 pebbles in front of D, then it doesn’t matter that he rolled high, because there wasn’t enough product in front of him. This is all a convoluted way to say that when you have dependent events and statistical variations, the time to get cases out is not an average of the variations, but an accumulation of the downward variations. Ouch.
There is a mathematical principle of covariances that says in a linear dependency of two or more variables, the fluctuations of the variables down the line will fluctuate around the maximum deviation established by any preceding variables.
What does this mean for law firms? It means that realistic goals of moving cases, should be based on the accumulation of delays instead of the average times to get things done. It means that the issue of ‘litigation constipation’ the cases coming in and not going out is a very real and institutional problem that will not go away by just hiring the 'right staff' or getting the paralegals to ‘work a little harder’. It means that some thought has to be put into the movement of cases and find ways to counteract this principle.
On the other hand, it also means that others have already studied this problem in other fields and we can apply them to a legal setting. I’m a big fan of Eli Goldratt’s Theory of Constraints. The basic theory is that by focusing on the bottlenecks of a business, you can exponentially increase the amount of work that can be done with the same resources. When it’s done right it boils down to common sense. But as Mark Twain once said ‘common sense isn’t that common’.
I will be applying some of the concept of Theory of Constraint to my law firm in the near future and hope to embark on a project with Jack Vinson of Knowledge Jolt with Jack in the near future. We’ll let you know what we’re doing and how it works out.
Good post David. I have done a lot of reading about project management over the years and I am convinced that every trial lawyer could benefit from reading about the subject.
In many places significant cases do not get resolved until there is a trial date. The "trick" then is to do what you need to do to get a trial date, which will depend on what that judge requires you to have done before you ask for a trial date.
In order to keep a trial date once you get it it is essential that your office meet all deadlines. You cannot complain about your opponent missing deadlines if you do not meet them yourself.
All of the requires, as you say in your post, knowing how long things will take to get completed and building in time for the inevitable bottlenecks. I would caution, however, that bottlenecks on our side can often be avoided.
For example, one bottleneck is getting plaintiffs to do what they need to do to get discovery answered. Solution: get them a questionaire that asks all the questions the future interrogatories will ask and get them to work on it early, before the complaint is filed. We rarely have to ask for an extension to complete our discovery because we have gotten a headstart on it. The source for the questionaire? Take the most burdensome discovery you have ever gotten and convert it into a questionaire. You may miss one or two of the interrogatories you eventually get, but then (a) you have 30 days to get that limited information and (b) you amend your questionaire for future use.
Another bottleneck: getting a defendant to send discovery. Some defendants will postpone sending written discovery to prevent the plaintiff from getting a trial date. My response: I serve "Interrrogatories and Requests for Production the Defendant Would Have Served on the Defendant" on myself and then respond to them. After 24 years I know what they are going to ask. (No; I don't answer myself any questions that are "tough" for that case.) Then they have their discovery. The judges get a real kick out of it.
John,
I think as lawyers we can learn a lot from project management. I'm constantly amazed that information that talented professionals in one field are not even aware of basic informaion that is given in other fields.
As lawyers, we tend to be poor businessmen and project managers (in general). We can also learn from the sales field.
In trying cases in addition to trial information, we can learn from the educational field, psychology (especially cognitive psychology), sales and also marketing.
