“It is common to misconceive how checklists function in complex lines of work. They are not comprehensive how-to guides … they are quick and simple tools aimed to buttress the skills of expert professionals.” — Atul Gawande, The Checklist Manifesto
Like a surgeon with her scalpel in hand about to perform surgery, there are more than a dozen different things that could potentially go wrong or potentially fatal. She must draw upon all her years of schooling, memorization, residency, internships, similar surgeries, and simultaneously be able to act on the fly and improvise as well. A seemingly impossible feat for anyone who is not a surgeon to comprehend. Yet, it happens successfully often in hospitals across the country. Is it just the knowledge of the surgeon and nurses, or is there something else? Indeed, there is — it is a checklist.
I have now read The Checklist Manifesto twice. I first read it years ago when Gawande first published the book in 2010. What astonished me the most as I read the book, is how incredible it is to think that surgeons, pilots, astronauts, chefs, engineers, and many more professionals around the world rely heavily upon one simple little tool — a checklist.
The checklist is the defensive tool that helps save countless lives in an operating room, keeping customers on an airplane safe, and ensures the walls, ceilings, floors, and roofs do not fall apart like a card tower in office buildings and shops. The checklist contains everything that must be done in the order in which has to be carried out for people to feel safe, and even for food to come out correctly.
So where is the connection to the legal profession? Everywhere. Interestingly enough, however, in nearly 20 years I have not seen a standard set of checklists produced that we can all agree upon; especially when it comes to e-discovery. I practiced in the early 2000s as a young lawyer and do not ever recall there being checklists on what must get done right before and after depositions, a checklist before filing a motion for summary judgment, a motion before case management conference before the judge, et cetera. In truth, I would have loved a checklist to make sure all my appendices and exhibits were copied correctly and tabbed the right way. (I will never forget the meeting I had with my partner afterward!) It is something that is seemingly so trite, yet so critical. Again, as Gawande says, it is not a how–to inasmuch as it is the minimum necessary steps to ensure that even the most well-versed experts do not inadvertently miss something critical.
Fast forward nearly 20 years later, and the landscape of electronic discovery and discoverable data is vastly more complex and mind-numbing. The types of data that is being created, the locations in which this data is being created, and the compliance necessary to ensure that the data is protected per Rule 1.6(c) of the Professional Rules of Responsibility can be overwhelming. Yet, notwithstanding all the intricacies contained within the Rules for e-discovery and guidance that is out there, there does not appear to be anything standardized in the detailed nuances of collecting custodial data, preserving data, copying data from one location to the next, ingesting data, and so on. To be fair, there are instructions with each software program that is specific to said application, there guidance published by the Practical Law Institute, and other great organizations. But there are no checklists in which the wording is “simple and exact”…“ideally, it should fit on one page…free of clutter and unnecessary colors…use both uppercase and lowercase text for ease of reading.”
Think of some of the most common mistakes that occur, which lead to an increase in motion practice about e-discovery. There is the most obvious one, which is the inadvertent disclosure of privileged material. A few checkboxes would have been helpful there, including one for the attorney about whether she negotiated a R. 502(d) Order in advance. What about not confirming the form or forms of production? How about not confirming production requirements?
Whether you are a law firm, in-house legal department, or a service provider, I encourage all of you reading this article to go back and look at your standard operating procedures, if you have them. Review any checklists you may already have in place. Then, ask yourselves what checklists could we have that should be executed against that would both reduce errors, reduce costs, and simultaneously increase overall success and satisfaction? What would you do differently that would increase your overall effectiveness? What are the minimal, necessary steps that we must all do as well-versed professionals to ensure that we are no inadvertently missing something critical before a production goes out the door?
If you do not think that there can be an operational and precision-based approach to e-discovery because of the multiple variables involved and software applications being used in the market — think again. Just as the surgeon must follow a checklist in performing complicated lifesaving surgeries, then so too can all of us, as legal professionals, find ways to use checklists as well. As Gawande says, “Just ticking boxes is not the ultimate goal here. Embracing a culture of teamwork and discipline is.” But first, pick up a copy of the Checklist Manifesto – you’ll be glad that you did!