Assessments Aren’t Just for Litigation

Early case assessment (“ECA”) is a valuable tool to analyze the risk and exposure associated with any given piece of litigation. But it is equally important in defining precedent and strategy for managing the litigation going forward. Simply put, ECA is composed of the following components:

1. Investigate facts

2. Analyze contextual issues

3. Decide on objectives for a project

4. Address stakeholder expectations

5. Define exposure (risk & financial)

6. Develop a project plan

7. Create a budget

So as I see it, ECA is critical to litigation. And it plays into Onit’s theme about legal project management being a three-legged stool: assessment of the situation, development of a project plan, and then budgeting for the project. Then, wash, rinse, and repeat.

But, is it really only useful in litigation? I think that this type of planning and critical thinking is valuable to all big legal projects. (You define “big” for yourself, but for me I would think projects that take more than a few days, or use outside counsel, fall into this definition.) So to help break free from the litigation context that ECA is most often associated with, I will call these “initial assessments.”

I would go one step further in applying process to the creation of initial assessments: don’t allow an invoice from outside counsel be submitted before an initial assessment is created. And while we are thinking about this in a process context, perhaps you don’t allow the creation of a project plan or budget before the initial assessment is done also. After all, how can you properly plan or budget a legal project without assessing the situation first???

One final point on the initial assessment must be made. Onit is not in the standards setting business and we don’t believe that initial assessments are a “one size fits all” form. These need to be tailored to a company and, more importantly, to a project type. An initial assessment for an acquisition looks very different than one for loan documentation or ERISA litigation.

In addition to breaking the litigation link to this concept, I also want to start to promulgate the idea that assessments are part of a continuum of project management. So in addition to the initial assessment, there should be periodic ongoing assessments and a final closing (or postmortem) assessment.

Ongoing assessments are key to managing the costs and risk of a project. It should be a review of all aspects of the initial assessment and allow you to consume any new facts or changed circumstances. Based on the ongoing assessment, you should update or refine your project plan, if necessary, review the budget and update that as necessary.

I like tying things like ongoing assessments and budget reviews to existing events or processes so as not to create more work. So, while these ongoing assessments can be done monthly, quarterly, or when the facts change, I think that a good (or better?) time to think about these is when a bill is submitted by outside counsel. That is a good opportunity to have your outside lawyer tell you if there are material changes to the initial assessment. If there aren’t changes, the process is simple and added no new work. If there are changes, then invoice presentment is a great time to ask changes or updates to be noted in the project.

Similarly, bill approval is a great time to ask the inside lawyer to do the same situation assessment and determine whether an update to the initial assessment is necessary. This way, every month a CEO or GC has an up to date assessment of the status of big legal projects.

Finally, but certainly not the least important, is to do a closing or postmortem assessment. Best practice project management dictates that you evaluate the performance of all project aspects to the initial assessment and evaluate the performance of stakeholders (including outside counsel, if used).

I think this applies to legal project management just as certainly as it does to other types of projects. It will allow you to determine what did and didn’t work in terms of risk or financial exposure and give you critical data to create better project type templates and to use information gained to create better project plans and better budgets.