I recently read The Checklist Manifesto: How to Get Things Right. From the title, you might think that Atul Gawande has written yet another self-help book about how to create and use better to-do lists. However, it’s really about using checklists as a “cognitive net” to “catch mental flaws inherent in all of us – flaws of memory and attention and thoroughness.” Checklists are a means of getting the most straightforward steps right while leaving “room for craft and judgment and the ability to respond to unexpected difficulties that arise along the way.” Checklists are not how-to guides – they are tools that “buttress the skills of expert professionals.” They don’t tell experts what to do – but they help them “be as smart as possible every step of the way,” ensuring that they have critical information when they need it, that they are “systematic about decision making,” and that they talk to all stakeholders. Checklists do not create automatons – rather, they help get the routine tasks done and out of the way, so that expert minds can focus on the hardest problems.
Gawande is a surgeon, and his examples are primarily from medicine, aviation and construction. I believe that his approach has equal validity for lawyers doing high-end, bespoke, work for corporate clients. He sees checklists as a way for teams that come together to complete very complex, deadline-driven, critical tasks – whether an emergency surgery, or, I suggest, a demanding M&A deal or bet-the-company litigation matter – to greatly improve their collaboration, and their efficiency and effectiveness, by using checklists as a tool to jumpstart and improve their communication, both at the beginning of a project as well as along the way. He suggests using checklists as a way to make “reliable management of complexity a routine.” It is a routine that “requires balancing a number of virtues: freedom and discipline, craft and protocol, specialized ability and group collaboration.”
For those who like to see data, Gawande presents some very interesting statistics to back up his assertion that “checklists supply a set of checks to ensure the stupid but critical stuff is not overlooked, and they supply another set of checks to ensure people talk and coordinate and accept responsibility while nonetheless being left the power to manage the nuances and unpredictabilities they best know how.” Hmmm, nuances, unpredictability – doesn’t that sound a lot like what the BigLaw partners with the highest billing rates say they are expert at dealing with? So if checklists can help make the routine work more efficient – less re-work by junior associates, anyone? – isn’t that good for lawyers and their clients? And it still leaves the experts the latitude to do what they do best: “There must always be room for judgment, but judgment aided – and even enhanced – by procedure.”
What does a good checklist look like? I’m pretty sure it’s not one of the 20-page “closing checklists” that I drafted and tracked as a junior deal lawyer. Gawande offers plenty of practical examples of good – and not so good – checklists. He even addresses the difference between “DO-CONFIRM” and “READ-DO” checklists.
If you’re an in-house leader wanting to have an “outside the box” conversation with your outside counsel regarding legal project management or collaboration (and how improvements in those areas can help you get more value out of your legal spend – and win them more business!), consider bringing your favorite BigLaw partner a copy of this book as a conversation starter.