Essential—all attorneys and support staff
It is important for each lawyer to have the correct amount of work. A lawyer with not enough to do is a financial drain on the firm, particularly if he or she is not skilled at client development (marketing). A lawyer with too much to do is prone to make mistakes and skip or miss steps in handling cases. A lawyer with an optimum caseload is both productive and profitable, devoting the correct amount of time and energy to tasks so that they are done well and completed on time. For this reason, it is necessary to have a means of measuring an attorney's workload in comparison with what for that attorney would be the optimum, or ideal, caseload. This Technical Document, in conjunction with others, provides tools for measuring a caseload correctly in relation to an ideal.
Measuring a caseload is related to managing a caseload, in that many of the tools used to accomplish these functions overlap, but the two are not the same thing. Other Technical Documents, such as those listed below, provide tools and procedures to manage your caseload effectively and in compliance with this firm's policy, with less stress and better control over one's schedule. It is necessary to be intimately familiar with the firm's procedures for managing a caseload and a calendar before one can properly measure a caseload using our firm approach. Accordingly, before studying this Technical Document, please first ensure that you fully understand these key Technical Documents:
Unfortunately, the vast majority of lawyers have a tendency to grossly overestimate or underestimate their caseload on any given day. Correctly "weighing" a caseload without the proper tools is difficult. Attorneys who lack an understanding of this Technical Document typically report their caseload in terms of how busy they feel at the moment, or how much stress they are experiencing, or how full their calendar is this week. These items are more an index of how effectively the attorney is managing his or her calendar and task list than they are of the actual caseload.
Measurement of a caseload is a completely different function than expressing how busy one is at the moment. Here you will find tools you need to understand the difference between how busy you are on any given day and measuring your overall caseload. This Technical Document provides the framework for understanding how the firm requires attorneys to measure and report the overall volume of their work as a whole—their caseload—so that we can intelligently distribute assignments and cases and make the best use of our personnel.
Our method of distributing work within the firm requires each attorney to correctly apply the Caseload Benefit Graph below, with the concepts that go with it, to regularly inform us whether his or her caseload is above, at or below what is optimum for that attorneyIn order to do this correctly, it is essential that each attorney have a complete understanding of the material below.
An optimal workload for one attorney may be too much or too little for another, and there is no value in proving that one's optimum capacity is higher than the next person's. What matters is that an attorney's workload be optimal for him or her in light of the specific parameters detailed below.
Common misconception. Attorneys who have failed to absorb the details of this Technical Document often incorrectly assume that they can picture a theoretical ideal caseload and that caseload fluctuates from day to day in relation to that ideal. We sometimes hear from these attorneys, "I'm way over optimum right now but by Thursday I should be below optimum." Their caseload will drop significantly in two days? No. Their calendar and immediately due tasks will clear up in two days, when they meet several short-term deadlines, but their caseload may not reduce at all. On this basis it becomes obvious that there is an important difference between a person's caseload and a person's immediate task lists.
Opposing philosophies that guide staffing decisions and work assignments
When it comes to the decisions a firm makes with respect to the hiring of new staff and the allocation of work, there are two generally opposing viewpoints, each with a certian logic. For the sake of discussion, we refer to these as the "bury everybody" approach and the "optimum case load" approach. In our firm, we tend to follow latter of the two, striving to maintain, as closely as possible, an ideal or optimum case load on the desk of each attorney and support staff member. Of course, this is an aspiration, and in order to achieve this goal there is a great deal of understanding and judgment that each staff member must apply, in addition to a vigilent and faithful application of the principles in the Technical Document. While these principles are not complex, they are somewhat counterintuitive, and experience has shown us that where there is a failure on the part of an attorney to employ these principles, the breakdown usually flows from a failure to understand this material.
The "bury everybody" approach. In most firms, the primary goal is to ensure that there are no idle hands. Because every person drawing pay represents a load on the financial resources of a firm, there is a general terror of hiring more lawyers than are absolutely necessary. To serve this end, firms often operate on the principle that no more attorneys or staff should be hired than are absolutely necessary in light of the firm's caseload. The goal in such firms is to keep each attorney as busy as possible, in order to reduce the likelihood that the firm will be forced to fire people if there is a drop in workload. This may seem like a good idea to limit the likelihood of being forced to implement a reduction in force due to a dip in business. In firms that follow this approach, the underlying value judgment is that the firm at its existing size is more stable with a "packed" caseload, which creates the sense that business is booming and all is well. The senior partners in such firms tend to think the stress level of this caseload forces attorneys to continually operate in a "maximum billing mode" all the time, yet remaining "efficient."
The primary flaw. In reality, what such firms are actually doing is implementing a policy whereby the short-term risk of reduced job security for any given person has a higher priority than the quality of the firm's work, its long-term growth, or any one person's sanity or professional development. This short-term, fear-motivated thinking tends to stifle, rather than promote, growth and advancement for individuals as well as the firm as a whole. The "bury everybody" approach not only penalizes the individual attorneys in the firm by reducing the quality of the work environment; the attorneys who work the hardest are punished by ever increasing workloads. Despite the assumptions mentioned above, the added stress experienced by all produces no additional income, because attorneys with lighter caseloads are already billing all they can and still not getting everything done in their cases, so this approach jeopardizes clients' interests for no real gain. In the long run, the likelihood of losing business with this approach is actually increased, because the overall quantity and quality of the firm's output and marketing activity is radically decreased. For these reasons, the "bury everybody" approach is usually counter-productive, especially in an hourly billing context.
The Caseload Benefit Graph
In order to rationally apportion work in a firm, it is necessary to discover the amount of work that is optimum for each attorney. This is based upon an understanding of the direct relationship between the amount of work on a lawyer's desk and the benefit to the firm—noting that the definition of "benefit" is key to this analysis and is covered in detail below.
The graph at left shows the "benefit" to a firm as a function of increasing individual caseload. At the left end of the graph, where caseload and benefit start at zero, there is a direct and obvious benefit that comes with increase in the caseload carried by an attorney.
Boyond a certain point, added benefit tapers off. Moving from left to right, as we approach the point labeled "1" on the graph, the attorney has enough work to bill as much time as he or she is willing, without cutting corners or skipping steps in the misused name of "efficiency."
This corner-cutting idea of "efficiency" often leads to the dreaded "we really didn't need that" excuse.
The mere fact that a lawyer can "get by" with too many cases does not make this an optimum solution, even though it presents the promise of being able to stay busy and billing even if the caseload drops. Sophisticated clients generally see through this, and realize when corners are being cut. Flat-fee clients, or those who want only to make the litigation process as cheap as possible without regard to results, may like the "bury everybody" approach, but there are major ethical problems associated with any fee arrangement that presents the lawyer with a financial disincentive to perform the best legal work possible and rewarding the skipping of necessary steps. Simply put: cutting comers as a long-term business philosophy will not make you or this firm stand out in a positive manner.
Definition of "Benefit"
To shed more light on our analysis, consider this question: What constitutes "benefit" as the term is used on the graph? In order to formulate the definition of "benefit," we must consider our purpose as a firm. Why are we here, doing what we do?
The purpose of this firm. This law firm is a business with one primary objective: to earn money by providing quality legal services to each and every client. Of course, there are secondary purposes that are also worth mentioning. These include professional satisfaction and development, serving society and helping others. Our Firm Charter defines our central organizational purpose.
"Benefit" as used here is defined as the generation of profit by providing high quality legal services, and the development and improvement of the individual and group ability to do so.
In an hourly billing context (assuming no difficulties with collecting fees are present), the term "benefit" includes two obvious factors, among a number of others:
A caseload is merely a collection of opportunities to perform and bill for hours of high-quality legal services. The quality of the work will decline after passing point 2 on the Caseload Benefit Graph, and for the sake of this policy it is expected that, provided the attorney is near or below point 1, the quality of work will automatically be the attorney's best. Short of that point, what increases with increase in caseload is the amount of hourly billing the attorney can ethically generate in a given time period.
The Finite Limit That Must Not Be Overlooked
How many hours are you willing to bill each week? (Consider your professional and financial goals, the minimum requirements of the firm, and your family or social life before answering.) Once you know your practical maximum billing potential, then we have a fixed parameter within which to achieve the optimum benefit. Any solution that fails to take this limit into account is not based upon reality.
Of course, nothing in this Technical Documentshould be interpreted as encouraging the notion that there is something good about working less than you should or being unproductive. On the contrary, the financial incentives this firm has implemented are designed to stimulate and reward a higher output from each attorney. We are simply acknowledging the reality that every lawyer has a maximum work limit. For some very capable and dedicated lawyers, this figure may occasionally exceed 100 hours per week.
Personal ambition and dedication to your carreer, health, stamina, family and personal affairs obviously play a role in the determination of your capacity for work; the top professionals find effective ways of optimizing those aspects of life to foster professional development and carreer advancement. We have watched with sorrow as some have floundered as their personal problems or lack of discipline overcome their dreams and goals. While the handling this subject is a major issue for novice and veteran lawyers alike, a full discussion of it is beyond the scope of this Technical Document. The policies and procedures of the firm, particularly the GTD System, are of incalculable value in helping professionals remain productive with a minimum of stress.
Each file carries with it the opportunity and obligation to perform a certain amount of work in order to do a good job.This is the amount of work which must be completed to handle a legal matter properly and effectively without wasting resources. Do less, and the client may suffer from skipped steps or half-measures; do more, and the client may suffer from being billed for unnecessary effort.
In view of all that is covered above, this question becomes clearly central to the determination of the optimum caseload: Once you have enough cases to ethically reach the number of billable hours you are willing to work, will handling even more cases really cause you to bill more time, or will you start skipping steps and compressing your efforts just to keep out of trouble, losing in the process any ability to market, assist the firm in administrative matters and your ability to tap more deeply your creative potential as a lawyer? Decades of experience has taught us that the latter rather than the former is the likely outcome.
Eventually, one's caseload can be increased to a point where the attorney is living on the edge of disaster. This is point "2" on the graph. At this point, the attorney is barely able to avoid malpractice. The attorney operating in this region of the chart will always be fighting to resolve some current crisis. Such lawyers are easy to defeat in litigation, having fallen into a purely reactive mode because he or she is simply too busy to be proactive. He or she is too busy putting out fires to formulate and launch fresh attacks on the opposition. The risk of missing a key deadline or an essential step is present in large degree above point 2 on the graph. The attorney becomes unable to give real thought to an ongoing matter, because there is no time to do so.
The reason the curve drops precipitously beyond point 2 is that the attorney in this region begins to make mistakes that cost more time and effort and this creates a "domino effect" or dwindling spiral, sending the attorney in the direction of a complete meltdown. The lawyer's clients are sure to suffer if the lawyer operates past point "2" on the graph.
Lawyers with too little to do are often living in dread of being tagged as "dead wood" by the firm. That fear pushes them to horde work, which as we have seen is good but only to a point (point 1, in fact). Lawyers who are too busy are not as good at communicating regularly with clients; they do not develop brilliant strategies; they do not file optional (but sometimes outcome-determining) motions; they fail to take necessary depositions; they are reluctant to deep legal research; they miss key points or bits of evidence; they forget to hire necessary experts; they tend to forget deadlines or leave too little time to prepare essential documents; they sound and appear rushed and worn out and therefore lose client confidence; the quality of their writing suffers; they become depressed and they get on the nerves of their co-workers, causing a spreading morale problem in the firm. This can lead to a snowball effect which, in turn, can cause the lawyer's ethical standards to drop with the application of "situational ethics," or dishonest reporting, and a host of other problems. Drug abuse and financial irregularities often follow, neither of which are permitted in this firm.
The Ideal Caseload
Between points" 1" and "2" on the graph, we have an area of flexibility. This is the area which makes practicing law livable, and even fun. At point 1, intermittent and unexpected fluctuations in caseload are not likely to have a particularly large effect on the attorney in terms of billable hours or quality of work. Considering these principles, it becomes obvious that the goal is to have a caseload between points" 1 "and "2."
Within this range, we can fine-tune our thinking even further. Experience also shows that in private practice, there are activities that are essential for firm growth and individual professional development other than just work quality and cash flow. These extra factors include continuing education and marketing, both of which also increase the likelihood that new business will continue flowing into the firm. If the attorney leaves time for – and seriously spends that time – engaging in professional development such as continuing legal education and self-study, along with with effective marketing, then we see that the best place for the attorney to be on the graph is just above point "1. " In this firm, we define that point as the "optimum caseload" or "ideal caseload." it is defined as follows:
Might this approach, increase the short-term risk that a reduction in force may be necessary? The answer is "yes," but the return is actually greater long-term growth and significantly increased long-term job security for those who are able to function well as attorneys in light of the considerations covered above.
Sources of Resistance
The application of this doctrine may require a period of adjustment for those who have worked under the "bury everybody" approach, or who have simply allowed themselves to be buried for too long. It is common for a lawyer who has been chronically overworked but who has recently achieved an optimum caseload to flinch at the idea of doing more with a file than he or she is used to doing, often because the person simply is not well trained on the finer points of litigation planning and tactics, and has not ordinarily dug more deeply into the various strategies and tactics that should be applied to gain as many advantages as possible on the client's behalf.
A lawyer whose practice consists of nothing more than reacting to the shots fired by the opposition quickly forgets (or never learned) sophisticated tactics that are often overlooked but which may win the case if used properly. A mastery of advanced litigation tactics requires more than frantically bouncing around like a puppet on a string. It is natural to flinch at the idea of being expected to: perform at a higher level; know more about your file and the law governing your case; regularly generate brilliant tactics and beautiful status reports; operative causatively rather than reactively; and regularly obtain superior results.
Being too busy is a great excuse that can protect one from the frightening implications of higher expections. This is the second reason that the "bury everybody" approach holds false allure. An attorney who can confront the vacuum of incomplete legal or tactical knowledge without the excuse of being too busy must be capable of candid self-assessment, self-directed action and improvement.
The optimum caseload requires a lawyer to be truly efficient with time in a totally different way than the "bury everybody" approach. This difference flows from the definition of efficiency. To find the hidden master stroke which will win a case is one thing; to do so in a manner which the client is willing to pay for is quite another thing. More specifically, this comparison brings out the difference between incorrectly defining "efficiency" as the skipping of steps with the justification of being too busy, and correctly defining "efficiency" as in the dictionary:
Efficient. being well organized; performing tasks in an organized and capable way.
Efficiency. Competence. The ability to do something well or achieve a desired result without wasted energy or effort.
Consider this question: What will likely happen if you maximize the quality of your work and marketing while working with an optimum caseload, capturing all of your billable time, generating your best results and keeping your clients informed in advance of key developments?
It is likely to be that you will attract more work. You might find that word spreads about your skill as an attorney, while your marketing efforts begin to pay off. You might find that you bring in more work than you can do by yourself (without going beyond the optimum caseload). This is a good thing! If it happens, you are contributing to the job security of others as well as yourself, and will find your income going up in light of the firm's policies regarding marketing bonuses and the firm's tendency to reward rainmakers.
How To Measure Your Caseload
Are we cutting things too finely with this analysis? Perhaps so. After all, in the real world of law practice, it is not always possible to minutely regulate the work to be done. Spikes and dips are unavoidable to some degree, but this does not denigrate the effectiveness of the principles described above. An airplane heading from Denver towards Boston may not travel in a ruler-straight line to the destination, but it sure helps if the pilots know that Boston is the destination, so they can make proper course corrections and heading adjustments when necessary. Similarly, this Policy Memo is designed to give you the ideal goal, or destination, so that you can help us make the correct adjustments to your caseload.
There is no set number of cases that can be set in stone to meet our definition of an ideal caseload for every lawyer. On the contrary, the firm depends upon each individual attorney to know and regularly inform us, based upon your intimate knowledge of the cases you are handling, the load that will meet the definitions set out above. For a particular lawyer, the ideal case load may be six very large cases, or ten times that many smaller files.
Put simply, you tell us where you are on the graph.
What may be ideal for one attorney may be too much or too little for another, as individual abilities and efficiencies vary somewhat, keeping in mind that there are minimum acceptable levels of efficiency and ability for each salary level, which are determined on a subjective basis by clients, the firm, and your colleagues every day. After all, most clients make decisions as to which lawyer or firm to hire on a highly subjective basis, using capricious and sometimes frustrating criteria, which we have no choice but to recognize if we wish to flourish and prosper as an organization.
We ask you to consider these principles very carefully, and ask questions if necessary, so that you can tell us at any given time whether your case load is above, at, or below the optimum caseload. With your feedback, we will do our best to make staffing decisions and case assignments to maximize the likelihood that everyone will spend as much time as possible operating with an ideal caseload.
|This Technical Document replaces the Policy Memo of 24 August 2001.