Meeting a Supervising Attorney's Expectations

"What is the point of the assignment? What does my supervising attorney want me to do?" Frequently, inexperienced associates do not know the answers to these questions; they do not understand what the supervising attorney really expects. Recently a new lawyer was observed in a firm library commenting to a colleague, "Well, here goes. ... I hope, for my sake, this is what the partner wants. I'm really not sure what he has in mind." Amid head-shaking and expressions of low-level frustration, they continued to speak, surrounded by a pile of open reporters, highlighted copies of cases, and filled legal pad sheets — all of which, presumably, required a substantial amount of time to assemble and study and expense to reproduce.
 

What questions could this associate have asked to find out what the supervising attorney expected? Where do communication lapses frequently occur? Most new associates who were previously summer associates received assignments in carefully defined pieces. As new associates they will find their projects longer and less predictable in scope. This section addresses how to clarify an assignment received as a first year associate.

Supervising attorneys expect, first, that you have understood — or soon will understand, upon reviewing the file — the objective of the assignment, its due date, and other material specifications. If you do not, they expect you to ask questions and to fill in their lapses in instructions. Just as a supervising attorney must not commit the cardinal sin of assuming with a client, do not assume with a supervising attorney; he or she is your "client." In a very real sense, your supervising attorney is the first real client you will serve. Thus, do not automatically accept the sufficiency of the information that you have been given. Anticipate questions to which you need answers. Ask those questions to get essential specifications to clarify confusing instructions. Keep in mind, however, that you should defer some questions until you have consulted the file.

Supervising attorneys vary in the style in which they explain an assignment; even the same supervisor's approach and attention may vary, depending on what else is happening that day and how that associate presents himself. A supervising attorney who has had little contact with a junior associate may be unaware of the level of that associate's experience and may not have considered whether more or less direction will be needed. Another supervising attorney may simply not have the time to wait for questions. Still another knows the associate has been given too little direction — in a cryptic yellow note stuck onto the file that has been dropped on the chair or desk — but decides to wait for questions. In some cases the supervisor knows that the significance of an instruction will not become apparent until the associate begins the assignment and rereads his or her notes.

Just as good students take responsibility for their own educations by asking questions based upon material they are "taught," confident new associates take the initiative to ask essential questions after the supervising attorney presents an assignment. In this sense, associates must participate in their own "education." Temerity has little place, yet inexperienced associates are often afraid to admit they do not understand what is expected of them and are even more afraid to ask uninformed, inappropriate, or "stupid" questions. Others are so eager to get on with the assignment that they neglect to back up and think about what is being said. Worse, they make conscious or unconscious assumptions about what the supervising attorney wants them to do. Not surprisingly, a first year associate's lack of understanding about an assignment results in wasted time as misdirected hours are written down or off and completion of the assignment is delayed. Worse still, the associate's mental wanderings, temerity, and inadequate completion of the assignment seem to leave an indelible mark on the supervising attorney's memory.

If the supervisor's schedule does not permit essential questions at the time a project is assigned, ask the supervising attorney, or his or her secretary, when you can sit down to further discuss the assignment. Some supervisors respond more favorably and more promptly to a note or memorandum. By preparing a memorandum for the file — setting forth the issues you have been asked to resolve and outlining your approach — you create a "record" which allows the supervisor to think through the project again, to make changes in the assignment, and to correct any glaring misunderstanding of the tasks you've been asked to perform. Other supervisors are best understood through the grapevine. Intense or extremely busy types are often "unapproachable" because of pressures, deadlines, and emergencies about which you know nothing. This often creates an even less conducive environment for asking questions. Here, the secretary, other lawyers, or legal assistants can assist you. The point is not to gossip but to efficiently fill in gaps in their instructions and your understanding.

By breaking down a supervising attorney's ultimate expectation into specifications that are unlikely to be reflected in the file, a new lawyer can consistently anticipate and address those that require clarification. Specifications relevant to any assignment generally include:
 

• Purpose
• Major tasks and sequencing; immediate "To Do's"
• Work product
• Due date, priority level
• Interim reporting and review checkpoints
• Time estimate and limitations
• Budgetary instructions
• Special timekeeping, billing procedures
• Special handling procedures
• Sources for information, firm resources
• Authority to delegate to legal assistant
• Directed contact with client, staff, outside advisors

The lawyer in the library at the beginning of this section likely had little or no idea of what the purpose of the assignment was and even less as to the work product required. To better understand the specifications of an assignment, general features of each of these components are explored.

Purpose of Assignment

As each assignment is explained, make sure the supervisor makes clear its purpose. Unless you have this compass with which to direct and recheck your efforts, your work product may not be of value. In addition, this may be your only opportunity to glimpse the overall plan and how your assignment fits into it. For example, the purpose of the assignment may be to educate a judge about the compelling strengths of your client's case by filing a motion for partial summary judgment on one claim for relief or, perhaps, on the lack of evidence to support punitive damages. The supervising attorney may even indicate that he does not expect to win on the motion because the judge will probably decide to hear the plaintiffs case first. Your work product may be a research memorandum, the motion and supporting brief itself, or the client's affidavit.

Regardless, in this example the goal of educating the court begins to give shape to the assignment and research needed.
You can test or clarify your understanding of the assignment's purpose by restating it: "You want me to determine whether . . ." or, "Our objective is. . . . Is my understanding correct?" Or prepare a written outline of your approach to the project, beginning with the goal. In confirming the purpose of the assignment, you are translating "what is going on here" into "where are we going": the basis from which you determine what you are expected to do and what you are expected to produce.

Major Tasks and Sequencing; Immediate Actions

You will have to determine the major tasks that must be performed; this will be the framework for your work plan. If you have not had this type of project before, or if it is more complex, you may be advised to review your understanding about the major tasks with the supervising attorney. This can be accomplished orally or by outlining the approach in writing. Note, however, that often you cannot expect to define the scope of an issue until you begin tackling the project. Also, identify those items that require immediate action. Following an assignment, take initial management steps:
 

• Fill in notes
• Review the file
• Divide the assignment into manageable parts
• Carry out immediate To Do's
• Assess lead time needed
• Set a start date
• Integrate it into your workload schedule
• Develop a work plan

Work Product

The work product is what you will produce: it's what you will sign and submit to the supervising attorney, give to a client, or file with the court. Too often new lawyers ignore the importance of the culmination of their efforts: remember, your reputation will be shaped by what you do, say, and produce. Your work product will represent you. Do not forget it. To produce a useful work product, you need to know what is expected. The supervising attorney may want a formal memorandum stating the questions, short answers, facts, discussion, and conclusion; only the answer and copies of controlling cases; or a two-page analysis for presentation at a meeting. Regardless, you must find out what you are to produce. The supervising attorney expects to use your work product. If you do not produce it, or you produce it incorrectly or with an inappropriate level of formality, it cannot be used.

To be useful, it must be clearly written, complete, responsive, appropriately organized, and timely. This is where new associates encounter a particularly common communication stumbling block. Supervisors use various "shorthands" to describe certain assignments or types of work products. When an instruction is expressed in a shorthand you have not heard before, or relates to a project in which you have not been involved, clarify what is meant. And ask around the firm about labels or terms for work products you do not understand. For example, an assigning attorney tells you, "Prepare a 'confirming letter,'" "work up the file," or "diary yourself up for a 30-day status report." Many of these shorthands are routinely used and en-compass specific elements. Often there are forms for them. What does the assigning attorney expect in your preparation of the status report? Does he or she intend to send it to the client or to use it as an internal planning tool?

Another common impediment to useful work products is the "draft." New lawyers are often told to submit their work product "in draft." Do all the things you do to finish a product: proofreading, cite checks, thoughtful sentence structure and transitions. It should be your best effort: it's your name and it's your product.

Due Date; Priority Level

As the assigned attorney, you must ascertain when a work product is due — whether imposed by the supervising attorney, client, court, or by the structure or momentum of negotiations or a transaction — and do what it takes to meet the deadline. Unless you know the deadline of each project, you will be unable to assign priorities and manage the assignment and workload effectively, sanely, and with a sense of your own competence and confidence. A directive to "get it to me as soon as you can" needs to be translated into a more specific time frame.

Often, a due date or the priority status of a project may appear to create a problem when assigned: it conflicts with priorities of other matters or it appears to require more time than is given or available. For a discussion of other problems in managing a workload. Take the initiative to solve the problem before concluding that it cannot be done. Determine if the due date is absolute or if part of the project can receive a later due date. If it is, determine if any competing projects, or parts of projects, have more flexible deadlines that can possibly be juggled. Can you divide the project that requires immediate attention into smaller tasks that you can accomplish in smaller blocks of time? Can you delegate some of the required tasks to your secretary or to a legal assistant if appropriate (and if you know how to do them yourself)? Also ask or find out whether someone else has handled a similar project and, if so, check whether that other file contains helpful forms, briefs, or memoranda.

To assess whether the due date is a problem and what can be done to alleviate it, you also need to know the realities of what it takes to get various types of work product out. Consider your time, secretarial time, word processing schedules and procedures, effective use of a personal computer, legal assistant time (if appropriate), internal resources, and courier service in rush hour traffic, not to mention express mail schedules, and an available telecopy line. For example, if you anticipate that your work product will run several pages and the word processing pool turnaround time that day is double the normal period because of a securities offering, then a review set for the next morning will create a problem for all concerned. In such a situation, if the due date is fixed, timely inform the supervisor or personnel manager, as appropriate, that you might need authorization for priority status or additional support staff to meet the deadline. If, however, you are unable to take on the assignment unless the due date for all or part of the project can be moved back, inform the supervising attorney immediately and explain why. A commercial transaction may fail if preparation of necessary documents is late.

Interim Reporting and Review Checkpoints

Interim review and reporting expectations — communication checkpoints and routines — vary among supervising attorneys and from matter to matter. Some supervising attorneys want to be informed of progress and status informally — by notes, conversations in the hall, etc. Others want formal reports — in-house memoranda, or copies of letters sent and documents served. In either event, supervisors want to be kept up to speed.

For some projects, the supervising attorney wants a progress report after a number of hours, a specified period of time, or when a specified event occurs. Assigned attorneys are advised to clarify, if necessary, what extent or type of work product will be expected by that time. Ask "What do you expect?" Sometimes only periodic discussions are necessary.

Often an associate may want to request periodic assessments of progress and establish checkpoints as the assignment is made. In this situation, an associate might say, "I expect to finish the first part by Wednesday but will need to confer with you before proceeding with the second part because. . . . Will you be free to discuss this on Thursday morning?"

A supervising attorney may expect you to send a completed work product directly to the client without review. You obviously need to know this expectation so the completed document is not left on your desk — as you wonder why your supervisor has forgotten about it.

Time Estimates and Limitations

As an assigned attorney, you must ensure that you understand the extent of effort the supervisor expects you to give an assignment. For a research assignment, the expected depth of research may range from "See if you can find anything on this to help us; spend a few hours on it. . . ." to "Do whatever it takes to get an answer." For some projects, the focus is whether the client wants a Cadillac or a Ford. See 4.06 [Part I, Expectation No. 17: "Use Economic Sense"]. Some-times, you can infer how long it should take from the supervisor's explanation of the assignment and other similar assignments you have completed. Often, however, you are well advised to confirm your estimate by asking the supervising attorney to assess how long the project should take (and any time constraints). This information can guard against "overlawyering" a transaction — that is, resolving all doubts at greater expense than the value the client places on the objective, or the supervising attorney places on the assignment. It may also reveal any misunderstandings of what a project entails. Finally, as the framework of awareness and experience grows, the associate develops judgment to determine the effort required in reaching a client's objective.

CONSIDER:

A client asks the supervising attorney to send a copy of the statute on sales tax. The client wants to determine whether the company must pay. The supervisor decides that he is comfortable sending the statute as requested, and asks an associate to mail a copy of the section to the client and to "let him know that it applies." The associate, who has done some work for this client and is generally familiar with the business, prepares a four-page analysis concluding that the client must pay the tax, and attaches it to the copy of the section. The supervising attorney fails to notice that the associate's time for the analysis is included in the client's bill. The client calls the supervising attorney to complain about the charge. The associate assumed that preparing an analysis was part of the job; this mistake and a subsequent "write-down" of time could have been avoided by clarifying that a telephone call or one-paragraph letter was expected rather than an analysis.

Budgetary Instructions

More clients are requiring their lawyers to estimate fees and expenses during the engagement process, to develop a budget, and to confer when planning to in-cur certain expenditures or to exceed estimates. Therefore, when you are assigned a lengthy project, ask about any budgetary and expense instructions that affect your assignment.

Special Timekeeping, Billing Procedures

A major adjustment from the academic study of law to the business and practice of law is keeping time accurately. In law school, students are unconcerned with keeping track of time spent on research and in preparing for class and examinations. Upon entering a firm and receiving time sheets, slips, or software timekeeping programs, new lawyers commonly regard them as an annoyance and a worrisome tool used to measure their performance rather than as a business necessity.

Recording time accurately serves several functions: (1) It forms a record and description of service for the client; (2) It satisfies a documentation requirement for professional liability coverage; (3) It provides a check against your To Do list; (4) It provides your supervisor with information to evaluate your work and progress, and provides other partners the sole exposure and source of information they have about your work; and (5) It provides management with attorney utilization and pricing data.

Record your time contemporaneously with each activity. If you wait until the end of the day and reconstruct tasks, you will have omissions. If you have re-corded activities somewhere other than on the timesheet (for example, in a daily planner), transfer your notes to that day's time sheet by the close of the day. You are advised to set up a system with your secretary to promptly fill in mechanical data such as file numbers and to transmit the report.

It cannot be restated too often: record actual time. If you think a task should have taken less time, record actual time. To do otherwise is not your decision. You know neither the partner's thoughts on billing the client nor the impact on your evaluation. You can, however, write a note or cover memo to the supervising attorney explaining why a project took longer or was completed more quickly than expected. This information may help the supervising attorney determine how to appropriately bill the client and to assess the firm's investment in the matter. Remember that the billing attorney does not necessarily know everything you are doing on behalf of a client unless you communicate it.

Determine if there are special instructions for re-porting time. In some situations, a supervising attorney may decide to deviate from the normal billing procedure or the client may have its own procedures which the firm has agreed to follow. When the client is billed a fixed fee for a matter, timekeeping is still important. To monitor the appropriateness of a fixed fee for a particular type of matter, the firm needs to track its investment in similar projects.

In describing how they have spent their time, new lawyers often neglect to consider the client's objective or perception of value, but instead focus on their supervising attorney's anticipated question: "What have you been doing?" In fact the supervising attorney expects each activity to be described in terms that are meaningful to the client. See 3.02, 4.06 [Part I, Expectation Nos. 7, 17]. Various descriptions written by the supervising attorney serve as examples. Many firms use printed verb codes and activity codes on their daily time sheets to prompt appropriate descriptive language. For example, verb codes used by one firm in its litigation department include: "Analysis of," "Draft," "Interview," "Prepare for and attend," "Telephone conference with . . . regarding." Become aware of descriptions that many clients find annoying, such as "interoffice conference." Reference to the topic discussed may be preferable.

Finally, record your nonbillable categories of time. Many firms require it. Even if your firm does not, it is still important. Bar activities, pro bono work, CLE time, and participation in outside organizations let your supervising attorney and management know "what you have been doing."

Special Handling Procedures

Some clients have developed special handling procedures which they expect the firm lawyers to follow. The procedures may be oral or written. For example, a client insurance company may have developed a form for status reports, may direct the lawyers to distribute copies of correspondence in duplicate to designated personnel, and may specify communication channels in various phases of litigation. If computer compatibility exists between the firm and the client, some procedures may involve electronic transmission of drafts for review. Some firms also create their own procedures for certain client matters. Corporate counsel often have a list of ground rules that they and the outside lead attorney agree upon during the engagement process. These rules may encompass division of responsibilities between inside counsel and the outside firm, roles of each individual who will work on the matter, guidelines or approval for hiring experts, a budget, reimburseable expenses, etc.

Sources of Information, Firm Resources

To effectively handle a project, assess whether information in addition to that in the file is necessary and how to obtain it. The assigning attorney may give you leads; the firm librarian or a legal assistant may have hands-on experience in efficiently investigating, locating, and obtaining factual nonlegal data through electronic databases, networking, printed materials, and governmental agencies.

Using outside sources and assistance reduces your control over timing. It also requires you to carefully plan to set realistic deadlines that allow for time to obtain and study the data, and to follow up. If you recognize the likelihood that you will need an outside resource at the time an assignment is explained and you are uncertain whether you are authorized to pursue it, discuss it with the supervising attorney. Early recognition avoids later delay in obtaining permission, if required, to proceed.

Find out where form files, research files, brief banks, and other internal work product files or precedent files for your practice are located. You may be able to find quality control or source manuals that compile opinion letters, lists of out-of-town court re-porters used by firm members, credentials of experts, and form interrogatories and requests for production. Again, your firm's staff are good sources for locating firm resources. Other members of the firm can introduce you to computer capabilities to perform numerical analysis or to search documents in a litigation matter and to courier services.

CONSIDER:

An investment banking firm assigns its outside lawyers to draft the documents for a transaction involving registration of debt securities. The investment banking firm's inside lawyers are using the outside firm because of caseload constraints. The investment banking firm has handled several similar transactions for this issuer. The associate assigned to draft the documents is unaware that the investment banking firm has handled similar transactions for the issuer, and has had no contact with the client investment banking firm. What questions do you ask?

What happened?

Because the supervising attorney and associate fail to discuss this client's previous agreements, the associate "reinvents the wheel," resulting in billable time that may be questioned by the supervising attorney, if not the client. Thus, a relatively inexpensive project has turned into a costly effort and the tone of this transaction is inconsistent with those between these parties in the past. A substantial portion of the associate's time devoted to the project must be written off.

Authority to Delegate to Legal Assistant

Sophisticated clients, especially corporate counsel, often require notice or discussion with the lead attorney before additional lawyers or legal assistants are assigned to their respective matters. Some have guidelines or procedures they wish to have followed that may or may not be referred to in the fee or engagement letter.

During your first year, the supervising attorney may not want you to delegate in many situations. Supervising attorneys expect you to learn how to prepare such mundane work products as, for example, in the litigation department, a notice of deposition, a subpoena, and routine pleadings, and to learn the significance of alternative provisions. Therefore, before delegating tasks to a legal assistant, seek the supervising attorney's permission. Conversely, after you have learned these and other tasks, learn to delegate. Billing time for such tasks at mid-level associate hourly rates makes little "economic sense" to a client aware of the firm's resources (and little sense to the firm).

Generally, delegate tasks that allow you to use your time more efficiently. Delegable tasks may include a variety of tasks necessary to process facts: investigation, summarization, compilation, and document organization, computerization, and retrieval.

When you do delegate, explain precisely the delegated task, your objective, the result you expect the recipient of the task to achieve, and its place in the overall project (similar to the "flight plan" information you expect from your supervising attorney). Give the legal assistant enough information and authority to make intelligent decisions within the scope of the assignment. Include the legal assistant in the planning process as it relates to delegated tasks; this will help clarify the level of mutual understanding, reveal areas you may need to monitor more closely than others, and you will learn how the legal assistant can help leverage your time. This approach also creates interest and involvement in the project and helps the legal assistant to anticipate and plan for the workload demands of your matter. See Appendix G, Assignment Management Worksheet. Efficient and accurate performance more than offsets the initial expenditure of time needed to ensure the legal assistant understands your expectations. It is also advisable to direct the legal assistant to promptly prepare a memorandum of all conversations with outside contacts.

When delegating, do so with recognition of the ethical constraints on the use of a legal assistant: Understand that the lawyer is professionally and ethically fully responsible for the direct supervision of work assigned — that is, the lawyer is responsible for what legal assistants do. See ABA Model Rule 5.3. Also recognize that there may be some tasks a legal assistant is not expected to do. A firm may assign someone other than a legal assistant to perform specific functions such as, for ex-ample, serving process or checking court records in another county. Unless work which is secretarial is part of a legal assistant's job with the firm, do not assign such work to him or her; confer with the legal assistant administrator or personnel manager on those tasks. Otherwise, the client might be billed for secretarial services at the legal assistant's rate. For guidelines in delegating to your secretary and establishing a good working relationship.

Directed Contact with Client, Staff, Outside Advisors

As an assignment is given, determine whether (and to what extent) the supervising attorney expects you to contact the client, its staff, or the client's outside advisor to obtain further information, to relay information, to discuss alternatives and answer questions, etc. Exclusive contact may remain with the supervising attorney for one or more reasons. If, however, you are expected to interact with the client contact or other advisor, it is important that the supervising attorney define your role and responsibilities. Also ask whether the client knows you will be involved in the matter so you can plan a smooth introduction. Firms lose clients because of poorly orchestrated delegations and supervision. Clients have mentioned their annoyance and confusion or questions as to management of their cases when unintroduced lawyers contact them and unfamiliar names show up on the signature lines of letters. Here, a little communication and consideration go a long way.
It is also important to clarify the limits of your authority to make decisions commensurate with the responsibility assigned to you.

CONSIDER:

For example, your assignment is to prepare the responses to plaintiffs interrogatories. Some of the interrogatories request information, some of which may be sensitive and concern the client's cost of doing business.
 

• Are you authorized to call the client or are you expected to relay your questions through the supervising attorney?
• Will your first communication with the client be a letter forwarding unobjectionable interrogatories and requesting responses and comments?
• Will the letter go out under your signature or the supervising attorney's signature?

CONSIDER:

You are asked to send the draft of the contract you prepared to the client for "review." A few days later, the supervising attorney asks if the client suggested changes or had questions. You are surprised and respond, "I haven't spoken with him." It is up to you to find out whether you are expected to call the client to follow up or whether the supervising attorney intends to do so.

If a fee or engagement letter is available to you, its terms may cover several areas that provide a context for your assignment. You will find reference to a well-drafted fee letter invaluable as you work through a matter; it is a tool by which you monitor adherence to the terms agreed upon. The new matter client intake sheet may also contain instructive data.

APPLYING THIS EXPECTATION TO YOUR RESPONSIBILITIES
 

• Find out the objective of your assignment.
• Anticipate and clarify material specifications that are unlikely to be addressed in the file:
• Work product expected.
• Major tasks and sequencing; immediate To Do's.
• Due date, priority level.
• Interim reporting and review checkpoints.
• Time estimates and limitations.
• Budgetary instructions.
• Special timekeeping, billing procedures.
• Special handling procedures.
• Sources for information, firm resources.
• Authority to delegate to legal assistant.
• Directed contact with client or staff, outside advisors.

Learn to manage your time and balance your workload

Supervising attorneys expect new associates to manage assignments in a logical, timely, and efficient manner. They often presume that new lawyers have created a workable method of their own, even though they have had little or no experience juggling competing assignments, and managing a caseload. New lawyers soon realize that the value, character, and relative importance of projects frequently change. In fact, the frustration expressed most often by first year associates is that they are unprepared to manage their workloads.

A common misconception among recent graduates is that they can mentally schedule and retain everything they need to do for all of their assignments. This approach is often maintained until the first assignment is overlooked or the first deadline is missed. Why do we believe we can remember everything? Because in the past, we have, or we've come very close.

During law school a student is single-purposed, following a linear progression from assignment to assignment, preparing for the mid-term and final examinations. Classes are held at the same hour each week and the examinations are scheduled — to the day and hour — well in advance. There are no chances of the exam being "bumped" "continued," or "rescheduled " because of an emergency negotiation or meeting. (For many courses, previously administered examinations are on file that effectively guide the student in determining what is necessary to meet the expectations of the "client")

Summer associate programs and law school clinical programs, although tremendously valuable for some things, do not exist to teach an associate caseload management. Instead, the summer programs' primary focus is to evaluate summer associates and to market the firm to desired recruits. Assignments are given in bite-size chunks of short duration. The supervising attorney and recruitment coordinator check on them frequently.

In stark contrast are the daily shifts in scheduling and time demands in the practice of law. A trying aspect of practice, regardless of specialty or type, is that everything on your calendar can change with a phone call. Literally everything.

New lawyers, although initially lacking an effective management style and many self-organization skills, must quickly learn to manage a fluid, shifting work-load. Workload management, in turn, becomes the cornerstone of a style of practice in which good judgment can be developed and exercised regularly, and excellent client service can be delivered — a "work-style." Some of the recurring problems and obstacles that new lawyers face can often be resolved by managing a workload and assignments. Self-generated obstacles arise if components of workload management are neglected, including:
 

• Clarifying Due Date, Priority Status Among Projects
• Estimating Time Required for a Matter, Task
• Knowing the Status of Active Matters at a Glance
• Reassigning Priorities
• Recording Deadlines and Reminders
• Managing Time
• Scheduling Tasks on Daily, Weekly To Do List
• Working Effectively with a Secretary
• Managing Assignments

Initial inquiries were outlined to clarify the due date and priority level of a project or its segments, and to estimate time expected spent on an assignment.

Know the Status of Active Matters at a Glance

To assist in managing an active workload, consider keeping a case-flow chart that lists the due date, priority ranking and major tasks for each active matter. A chart works because it provides a current "snapshot" of your active caseload. At a glance you can use the chart to anticipate demands among competing matters, to prepare a weekly and daily To Do list to recognize the need from time to time to affirm and reassign relative priorities among projects and to juggle projects as priorities shift. If a project abruptly demands most of your attention, reference to the chart will prompt you to quickly assess the impact on other assignments. The chart also serves as a reminder for the small percentage of files you do not like or want to tackle, but must.

Under each major task you list, it is advisable to enter your estimated starting and completion dates.

The chart helps you organize and gives you perspective on your caseload. Priority ranking among projects is not necessarily the same as the order of their due dates. One may require earlier attention than another that is due first. If, after taking immediate action, nothing further must be done for a while, that project's priority level would be adjusted to reflect the time when work should be resumed.

Reassign Priorities Among Matters and Tasks

To manage your workload as several matters compete for your attention, you must not only determine the priority of each assignment when you receive it but periodically reassess it thereafter.

Priority status of a matter may change for many reasons, including unfolding complexity, a change in the client's circumstances, or a change in the tempo of a case. Variables that determine the relative priority of a matter include:
 

• Due date
• Flexibility in extending due date: time, cost, strategy
• Change in client's circumstances and priorities
• Lead time needed to carry out tasks; complexity
• Control over allocation and scheduling of firm or outside resources
• Flexibility in scheduling work on current phase of other projects

By assigning and reassigning relative priorities to each of your projects, you will maintain perspective — a critical element of "workstyle."

When you find yourself inundated with projects you cannot put in order, or establish priorities for — let alone complete — inform your supervising attorneys and enlist their aid in saying "no" to any additional projects. Then seek their assistance in assigning priorities. Consider, for example, this associate's response to a memo assigning a "short fused" task: "To pull those numbers together on Wilson by tomorrow I'll have to defer evaluating the Lane situation you assigned yesterday. Unless I hear otherwise, you work on Wilson first and get back to Lane next." If two or more supervising attorneys have given you conflicting matters and you are unable to resolve the conflicts yourself, ask who has first call on your time instead of making speculative decisions yourself or informing that you cannot get to the assignment a few hours before it is due. If you are assigned a mentor, or assignment coordinator, seek his or her advice. Do not simply disregard a due date you find arbitrary. By doing so, you may be considered undependable or unfairly accused of exercising poor judgment, regardless of your undisclosed rationale.

Record Deadlines

Most new lawyers soon realize the imperative of calendaring scheduled appointments and events through their secretaries and using the firm's or department's docket control system to avoid missing conferences, and obvious deadlines such as court dates, statutes of limitations, closings, and due dates governing the other side. If, for example, opposing counsel does not respond to your interrogatories or request for production and, having failed to record a reminder date, you neglect to file a motion to compel a response, then a judge might not issue sanctions later if you claim "surprise" to their documents or witnesses that you sought to be identified in the interrogatories. Ensure that your system also picks up subtle deadlines, such as conference calls, follow-ups for inactive matters, a date when action on a project must begin, the deadline to designate an expert witness, and expected response dates set out in correspondence. Also record the dates you give the client by which to furnish information. A client or outside advisor may be a "two week man" unless prodded periodically. For those who have a personal computer in their offices, also consider software packages that have calendar entries. Some have formulas that facilitate setting related dates, deadlines, and reminders — for example, form filing or statute dates. Do not only calendar: react to the calendar.

Carry a pocket calendar or a daily planner in your briefcase. When you are away from the office and schedule a meeting, telephone appointment, or other activity, enter it. Upon returning to the office, tell your secretary each of the events that you have scheduled and all deadlines you set or received.

Some new lawyers neglect to consistently report scheduling information to their secretaries or decide it is too important to share with the secretary — that's backwards! In the final analysis it is your responsibility if you miss a deadline or a meeting. If your calendar, the docket control system, and your secretary have incomplete information, none is a reliable primary source or a backup. Your secretary is there to help you. Enlist the help and the resources of your secretary to ensure that you will not miss a deadline.

Manage Your Time

Do you careen from crisis to crisis, muttering around the office or fretting constantly over your many tasks, and accomplishing few? If so, you probably do not follow an internal process that positions you, your secretary, or legal assistant, so that you can each exercise good judgment and then act successfully, instead of reacting to hurriedly assessed alternatives. Cumulative judgments in recurring crises do not represent your best work. If preventable crises fill your days and you cannot be bothered to change, here is a glimpse of your likely future: burnout, extreme stress, supervising attorney and client dissatisfaction, self-dissatisfaction, and worse.

To Do List

Prepare a daily and weekly "To Do" list of tasks for all matters from the work plan and checklists you've prepared for each assignment or case, your calendar, and docket control system. There are also software packages available in which you can make entries for tasks, appointments, and tickler reminders to warn of approaching deadlines or events. The To Do list cuts across all projects so that you can orchestrate progress in each. It only takes a few minutes to prepare a To Do list. Do this as the last item of business each day and week or as the first task each morning and week.

Assign priorities to each of the activities as they are inserted on the To Do list for that day to accomplish your goals: "A" for urgent, scheduled, must do; "B" for important, do if possible; and "C" for optional items. The point is to focus attention to activities in sufficient time to exercise good judgment and produce interim results geared toward achieving the client's objective. Unavoidably, part of each day is unpredictable. In scheduling tasks, anticipate that part of each day will not be available. The "stacks-of-files-on-the-desk-or-floor" (or in-basket directed) method to determine daily activities and to remind of cases that need attention consumes much more time as files are reordered and checked. More significantly, you may well overlook a file that is removed from your office or lost among larger files. Reacting to those files within arm's reach does not work for long.

Consistently following a well-intentioned To Do list presupposes exercise of time management skills. From the time management seminars, articles, and books that abound, the following thoughts and suggestions may help make your To Do lists work. First, get some perspective on how you currently manage work. Record each of today's activities chronologically. If today becomes both "crazy" and unusual, then also record tomorrow's activities. (If, instead, you were to reconstruct yesterday's activities as data for this analysis, you would probably fail to recall wasted time.) Mark those activities which were "A," "B," and "C" levels — and those which fall below "C" level. "A" activities result from:
 

1. Planning — scheduled meetings, conference calls, returning calls — they are on the To Do list
2. Unavoidable crises — those which could not be foreseen and defused
3. Procrastination and poor planning

If you reduce procrastination, you create time to address the "B's," which accumulate and desperately demand a flurry of actions. Although the first type of "A" situations is generally positive, beware of over-booking yourself, thereby precluding attention to "B" activities that necessarily require some designated portion of your time each day.

Poor time managers find they list many "A" and "C" level activities, but have not fired a shot on "B" activities. "B's" require planning and active project management to appear on the To Do list. Frequently, there simply is not time for "B" activities — they are not crises, they do not litter the in-basket, and they do not intrude as incoming calls or unannounced visitors.
Occasionally an ignored "B" level task can later create a disaster. For example, a lawyer's failure to follow up with the expert witness to discuss that expert's report before the pretrial order was due. Here is another example of a "B" activity that is often neglected until it becomes an "A" level crisis. You receive an assignment for which you believe or are told there is a "form that just needs to be customized a little." As it turns out, the form requires significant changes and the project itself demands hours of research. It cannot be overemphasized — "B's" are too often left to smolder until they become real fires.

"C" level activities also have their place, sometimes as a necessary mental break from urgent or intense work. They need careful management, however, to keep them in perspective: they often appear, mistakenly, to require less time to begin or complete than expected, or they are delegable with appropriate supervision. If work on "C" tasks begins too early during the day, you may run out of time to properly handle "A" and "B" tasks.

Some Suggestions
 

1. Decide on the next step or disposition while reading the contents of the in-basket or surveying a new file. Do not merely transfer papers to another location in the office — credenza, table, drawer, or floor. Put them in the out-basket with an instruction and make a note on the To Do list, a checklist, or calendar and docket system, as appropriate.
2. Carefully consider whether some "C" activities on your lb Do list can be delegated to your secretary or to a legal assistant.
3. Tackle the "A" level projects at the time of the day you work best — begin them earlier rather than later to ensure you get them all accomplished.
4. Become aware of practices that waste your time and determine how they can be corrected. For example, be alert to time wasted by disorganization such as leaving tasks unfinished that should be completed while you are focused on the project, a poor filing system, socializing, or unclear communication between you and your secretary or you and the supervising attorney.
5. Designate a reasonable period of time (very early, very late) each day to work without routine interruptions. Also inform your secretary of your priorities and set up an internal system so nonemergency calls are held during that period, in-basket material is not delivered, and peers do not drop in. If you consistently return calls promptly, nonemergency callers will have confidence that you will get back to them shortly and will be less likely to insist on "catching" you now.
6. Think broadly about completing the entire pro-ject. Ask yourself for each task listed: could this be done in a better, more efficient way? Note the re-minders you will have to give others to avoid a last minute crisis.
7. For a new project on which work must begin, create the beginning of a work plan and list a specific task instead of "start working on Smith file." It is much easier to put off beginning work on a matter that appears overwhelming than to avoid tackling a definite task.
8. End telephone conversations that become social firmly but graciously so you can get on with your work. Do not be afraid to close the call with a commitment to phone back at a specified time and date to continue the conversation.
9. Check your To Do list priorities against the "big picture" priorities listed on the case flow chart.
10. 10.List things you need to do on a case as soon as you think of them. If you do not make a note of them right away, you may forget them by the time it is convenient to write them down. Then transfer them to the project's checklist.

Work Effectively with Your Secretary

To manage assignments effectively and efficiently presupposes a good working relationship between new associate and secretary. More than an occasional second year associate has sighed, "I am grateful to receive a secretarial reassignment — now I can start over. I did not know how to work with my secretary and it was a disaster." Building mutual trust and working as a team instead of functioning as two uncoordinated individuals requires effort and commitment. You and your secretary share common goals of delivering client service, achieving job satisfaction, and gaining respect of colleagues. The following are some suggestions to get off to a good start.

Many firms have created a procedures manual or issued instructional memoranda that address secretarial responsibilities and administrative policies. Acquaint yourself with procedures that impact on your work and expectations. Find out, for example, the division of typing responsibilities between secretaries and word processing staff; a secretary may be expected to type documents or letters of less than five pages. Also become aware of the circumstances in which secretarial and word processing time are billed to clients. To use support services and resources efficiently, acquaint yourself with procedures for telecopy requests, messenger pick-up or delivery, express mail, equipment check-out, print shop projects, library and file-room check-out procedures, and so forth.

Your firm may have a policy on answering telephone calls. More firms now pass calls from the switchboard directly to lawyers' offices instead of screening calls; some encourage attorneys to give their direct dial numbers and expect them to place their own calls. Familiarize yourself with policies and procedures such as message center or voice mail instructions.

Focus on defining and communicating your initial expectations of your secretary. Discuss, for example, your respective responsibilities in scheduling and maintaining the calendar, filling out docket system entry slips, and procedures for in-basket and out-basket paperwork flow. You will develop additional expectations as the variety and complexity of assignments increase and as you become familiar and comfortable with your secretary's capabilities. Your secretary can also offer practical advice or help you with administrative procedures, for example in arranging for service of process with the outside process service.

The secretary is a vital contact point and communication link from the client to the attorney. Inform your secretary when you are leaving the floor or the office, where you are going, when you expect to return, and whether to forward calls if you are in the library. Determine how you want your secretary to take telephone messages. What is a good message that will save you time and convey to callers your accessibility and interest in their matters? Also observe how the secretary takes messages for a senior attorney. Let the secretary know who you expect may call and what to say if the call comes in. Clearly relate questions you want the secretary to ask or information you want to obtain.

Ensure that the secretary is aware that the attorney-client privilege extends to information clients convey to her on your behalf so that she can explain this, as appropriate. If you want a call routed to someone else in your absence, or a telephone appointment scheduled if certain persons should call, let your secretary know that.

If you have a personal computer in your office, discuss and establish work flow procedures that maximize efficient production of work product. The goal is to provide cost-effective service to the client. You may determine that you draft a document more skillfully using the computer than dictating it but edit from hard copy. Make sure you communicate your expectations and preferences to the secretary.

Periodically discuss, "What's working?" "What needs improvement?" "How can we work together better?" Finally, ask yourself, "If I were my secretary, would I be happy working with me?"

APPLYING THIS EXPECTATION TO YOUR RESPONSIBILITIES
 

• Components of Integrating a Matter into Your Workload and Managing Your Workload Include:
• Knowing the status of each active matter at a glance
• Reassessing and reassigning priorities as variables change: due dates and flexibility in scheduling work among projects; changes in client's circumstances and priorities; momentum; lead time needed to carry out a task; resources
• Recording deadlines, tasks and reminders: use your secretary, calendar, and docket control system
• Managing time through scheduling tasks on a "To Do" list and careful setting of priorities: A — urgent, B — important, C — optional
• Working effectively with your secretary by defining and communicating your expectations; establishing responsibilities and procedures — Discuss periodically what is working, what is not, and how to work better together

Learn to manage your work and show results

Lawyers work for results! They seek the best outcome for their clients. Supervising attorneys expect attorneys to whom they delegate assignments to produce a useful work product. Managing the assignment is a prerequisite to producing a useful work product.

When you receive a new assignment, even though you are busy, to manage you must work it into your workload as soon as possible.

The First Step

The following are suggested routine procedures to follow when an assignment is received:
 

• Fill in assignment notes
• Incorporate immediate action items into the daily To Do list
• If none, review the file to realistically assess when work should begin to meet deadlines
• Integrate the assignment timeline and due date into your workload

Create a Work Plan

Make a work plan. Just as gaining the summit of the mountain requires climbing to the ridge first, accomplishing the result a client seeks requires planning to complete interim steps aimed at the objective. How each step is taken and completed may well determine the final outcome. As good trial lawyers know, "Good on your feet at trial" results from good preparation at your desk.

As you create a work plan of the steps you will take, you must make a series of professional judgments. Clients want and expect the lawyer's professional judgment to help them make decisions relating to operations, planning, or dispute resolution. Supervising attorneys observe your judgments to decide if you are ready for advanced assignments and increased client contact. Thus, your success depends on ensuring that your plans, judgments, and management translate into the best incremental service and results you can provide. Your focus on the ultimate "result" should not obscure the importance of planning and achieving interim results. Planning and managing an assignment benefits the client and the lawyer because it:
 

• Focuses and maintains a lawyer's attention on the client's objective and expectation of consistent service. (In fact, the originating attorney probably emphasized superior service and work product in attracting the client.)
• Fosters an organized, thoughtful environment in which the lawyer can better pace work and exercise good judgment. The lawyer can also make better time and cost estimates for future assignments.

CONSIDER:

You are instructed to meet with a client and opposing counsel to persuade opposing counsel not to file suit against the client because it is without merit. You determine what you have to do to prepare for the meeting and check whether the documentation in sup-port of your client's position is in the file. It is not. The next step is to call the client, if authorized, or your supervising attorney, to request the documentation for your review before the meeting. If you had not checked the file and made the call sooner rather than later, the client (or supervising attorney) might be out of town or otherwise unable to gather the information in time for you to prepare.

The all-too-common consequences of failing to plan ahead can be illustrated with a situation analogous to solving the typical legal problem: the assembly of a child's gift from Santa. At about one in the morning you discover that the cotter pin needed to hold the steering wheel of that shiny four-foot-long fire engine is not in the bag of parts. This disaster, a fire engine that does not work Christmas morning, would not have happened if only you had checked the instructions and parts list the day before. As your child looks to you questioning the existence of Santa, so will your client, questioning the existence of your competence and judgment. The client, for example, expected to use the proceeds of the sale you are handling to meet an obligation due on the day of closing, and you forgot to check to see if the contract called for payment in immediately available funds.

Break Projects into Manageable Parts

To create a work plan divide a large assignment into subprojects or a smaller project directly into major tasks. Outline the plan. If the assignment is complex, it may be helpful to diagram that sequence with a flow diagram. By enabling you to see the project as a whole and the relationships among major tasks, a flow diagram forms a framework for planning and pacing your work. This tool prompts you to anticipate which tasks require more lead time than others and to anticipate additional tasks that are likely to lie a step-and-one-half ahead of the immediate scope of the assignment. As work is performed, you can readjust your plan and add to your flow diagram the tasks of exploring, assessing, and testing "what are the alternatives; in essence, part of your diagram can become a decision tree. The need to update the supervising attorney on your progress or seek guidance may become apparent. For those of you who have access to a personal computer, there are numerous project outlining and management software packages available. See Figure 6.2 for a sample assignment flow diagram.

When you find yourself overwhelmed by a new assignment look for any immediate To Do's. If none are apparent, tackle it by focusing on its overall objective and allocating a small block of time in which to make a start. Use that time to review the file, isolate research that appears to be central to the project, identify information you need to collect, or list persons who you believe you will need to contact and the purposes for the contacts.

Construct Timetable and Budget Time

Budgeting time among tasks and constructing a timetable imposes discipline and sets a self-pacing structure for the assignment. This step also facilitates appropriate allocation of time among competing projects and timely entry on the To Do lists.

Anticipate the time needed to carry out each major task — optimal, probable, and worst case — within the prescribed time period for the project. Moving from the assignment due date or date promised back to the assignment date, construct a timeline by designating start and completion dates for each subproject or task. If it is up to you to set the assignment due date, start with the date it was received and move forward to budget time and set a reasonable completion date. Insert the time estimates onto the outline or diagram. Also enter the two or three major tasks and dates on the workload case flow chart.

For time estimates to serve as an effective tool for managing work flow toward the final deadline, or complying with budgetary or billable time constraints, the estimates must be realistic. If, for example, the work product will go to the client for review and comments, extra time must be allotted for that purpose. Similarly, additional time must be allotted if the supervising attorney expects to integrate your work product into his.

As you prepare the timeline, consider reasons for actual and apparent unreasonable delays you have experienced on other matters. If you are able to isolate recurring causal patterns, you can often eliminate repetition of the problem when planning a new assignment. Many new lawyers fail to estimate lead time needed to begin or complete a task. For example, you began a task late and the outside resources you needed were unable to drop everything else or reorder their commitments to accommodate you immediately. Or, you failed to consider lead time needed in dealing with a government agency. Or, you were late in starting research because the due date appeared so far away, and you had not even looked at the file shortly after receiving the assignment to assess what would be involved. (You probably made an unfounded assumption.

Working through an assignment work plan and timeline will reduce the potential for procrastination because the effect of procrastination becomes so apparent. While concentrating on other matters, the need to interrupt them to handle a task is readily determined. You will also become alerted to whether you need to reallocate or seek additional resources to complete the assignment on time.

Create Checklists

For each task that you have listed, construct a checklist of activities: substantive, administrative, and procedural. Note any sources consulted for information. Some activities in a checklist may be dictated by the outcome of earlier steps. As checklists are the product of organization, they also prompt better descriptions of time for billing purposes. After preparing a checklist of activities for a task, reassess the time budgeted for the task.

Delegate Appropriate Tasks

Delegating tasks effectively requires that the lawyer plan, set priorities, and communicate expectations. It also necessitates awareness of the secretary's workload and schedule among matters and attorneys, and daily priorities placed upon both of you by the firm, such as completing timesheets.

As a general guideline in determining what to dele-gate, identify tasks that your secretary can competently perform more efficiently or equally efficiently as you. Use of your checklists or flow diagram may be helpful in determining which tasks and minor decision-making activities recur frequently and can be cost-effectively delegated. Where possible assign a whole task instead of a piece, to avoid unnecessary coordination steps. By consistently receiving similar tasks, the secretary can become proficient in carrying them out. It is important, however, to balance delegation with self-training: do not delegate tasks that you are confused about; your expectations and directions will be unclear.

Define and clearly communicate the purpose of the task, what you expect to be achieved, time constraints, and relative priority of the task. Determine the extent of discretion the secretary will need to make decisions and to take actions in carrying out the task. Gradually, consider delegating some tasks that you perform more efficiently than your secretary. Those tasks should be introduced in bite-sized chunks and progress supervised accordingly.

Keep in mind these common sense "don'ts" of effective delegation: Don't assign a task and then do it yourself. Don't hover and second guess each step of your secretary's process in carrying out an assigned task. That approach swiftly conveys lack of trust. If you are concerned that the task has not been started, consider whether you clearly communicated the deadline, priority, expected effort needed, or checkpoints. Don't create unnecessary last minute pressure on your secretary by neglecting to organize yourself. Some lawyers assume they know how long a task will take their secretary to perform even though they have never asked or discussed it. Such speculation often results in a severe underestimate of what it takes to get the work product out.

Next, recognize what happens if a lawyer delegates similar tasks on an inconsistent basis, sporadically performing those tasks himself or herself. The secretary will probably become confused about that lawyer's expectations and conclude that she is not responsible for the assignments and need not worry because the lawyer will redo or complete them. This attitude yields inconsistent performance; the lawyer is left with little confidence that the secretary will predictably proceed from point A to point B. Finally, delegate credit but not blame. Some new lawyers make disparaging comments about a secretary's failure to carry out assignments and attempt to disassociate themselves from mistakes. They neglect to recognize that such behavior marks them as immature and unwilling to accept responsibility.

In some situations, the client as well as the supervising attorney must approve the assignment of a legal assistant to a project. When delegating to legal assist-ants, involve yourself with them in planning their tasks. Do not, however, use delegation to "dump" tasks that you do not know how to perform (hoping the delegatee will figure out what to do without recognizing, exposing, or compounding your confusion.) Do not, for example, delegate preparation of a subpoena duces tecum or a citation until you understand the relative significance of various procedures or language. For a discussion of delegation to a legal assistant.

Enter Tasks onto To Do Lists

Checklist items from each matter should be entered onto the daily or weekly To Do lists, as appropriate. Checklists for each project are not a substitute for a To Do list. The To Do list schedules tasks across the workload. As discussed earlier, assign priorities to each activity when inserting it onto the To Do list for that day and week: "A" for urgent, must do; "B" for important, do if possible; and "C" for optional items.

The following work plans illustrate a relatively straightforward matter — updating corporate minutes — and two more complex matters — an assignment to determine advice on health care coverage requirements, and a supplemental retirement plan.

A. Updating Corporate Minutes. You find a file on your desk with a note saying the supervising attorney wants you to update G Corporation's minutes. You have not worked on any G Corporation matters and are unfamiliar with the company beyond what is in the file. You ask the supervising attorney's secretary when the supervising attorney wants the minutes completed. The secretary does not know but agrees to find out for you. Before hearing anything, you check again the next morning and learn that there is a board meeting two weeks from tomorrow and that the minutes must be delivered to the client the day before the meeting. You examine the file and note that there is little helpful information to assess how much happened during the year. You leave the supervisor a note stating that you intend to contact the chief financial officer and the executive vice president to get the information needed, and that you want to enlist a legal assistant's help. After clearing this planned course of action, you prepare a list of topics, questions, and documents to ask these corporate officers, including: the names of current officers, shareholders, and directors; dates and decisions reached at the annual shareholders and board meetings; and, what major decisions and events have occurred during the year.

After selecting a format for the minutes, you explain to the legal assistant how the information should be applied to the format. Then you set a due date five days before the minutes must be delivered to the client to give you and the supervising attorney time to review the document. During one of your conversations, the chief financial officer raises a problem which may provide the firm with an opportunity to render additional service. You mention this possibility in a note to the supervising attorney that you attach to the minutes. The supervising attorney makes a couple of comments in the margins of the minutes and you revise them. The supervising attorney delivers them to the client as they meet to prepare the client regarding some issues for the board meeting.

COMMENT:

This associate wisely took the time to look over the file in advance to plan for the lead time needed to gather the information, prepare the minutes, and submit the document for review by the supervising attorney.

B. Health Care Coverage Assignment. Suppose that the associate has the following instructions for a new project:
 

1. Determine specifically what the client company must do to comply with a new health care act — what coverage must be added or changed;
2. Submit a memorandum for review in four days.

The health plan is not in the file; because time is short, the associate requests the plan and arranges to have it picked up instead of mailed. Later that day the associate decides to become generally familiar with the requirements in the Act to determine how much re-search will be involved. Some of the coverage requirements appear straightforward, such as eligibility for continuous coverage. However, the definition of the new benefits the company must offer and the amount the company can charge will require further research. The associate realizes that some time will be needed to call the company to learn about how its administration might apply the new benefits and cost provisions. The checklist for the work plan looks like this:
 

• Conduct preliminary research. (b) Obtain health insurance plan.
• Examine plan and research specific requirements. (b) Make calls to client, as needed.

1. Draft memorandum.
2. Submit memorandum for review.

The day the plan arrives, the associate analyzes the additional coverage the client must offer, and deter-mines the formula to discuss with the company to enable a more specific response. For an illustration of a memorandum's "deductively ordered summary" prepared for the client.

C. Supplemental Retirement Plan. On November 8th, the supervising attorney assigns an associate to draft a nonqualified supplemental retirement plan for the client company's top 25 executives out of 400 total employees. The firm has represented the client previously; some information is in the files, but the associate will have to develop most of the specifications and supporting information for the plan. In demonstrating the process, the associate's questions about the scope of the assignment and the supervising attorney's responses are included:

"Should I prepare a fee agreement?"
"Yes. Specify the scope of the project and include that we will educate the employee benefits administrator about particulars, to assist in implementation."
"Is there a special billing procedure?"
"No."
"When do you want to review the plan?"
"I would like to see it in draft a few days before I meet with the client."
"When will you meet with the client?"
"November 20."
"Are there any assumptions or specifications I should know about?"
"Generally, the company wants to encourage the executives to remain until retirement, but because of the stressful nature of the industry, normal retirement can be as early as 55."
"Who may I contact for the information I need?"
"Contact the chief financial officer. He is privy to our assignment and will be eligible to participate in the plan."

CONSTRUCT WORK PLAN

Subdivide project into tasks and budget time:
 

1. Fill in assignment notes.
2. (a) Review files and research to determine questions for chief financial officer (CFO) (b) Prepare fee letter.
3. (a) Obtain specifications from CFO (b) Submit fee letter to supervising attorney for review
4. (a) Draft plan, election, and beneficiary designation (b) Discuss with CFO
5. Submit for review
6. Revise and complete; prepare cover letter?
7. Follow up with executive vice president
8. Educate employee benefits administrator

If you anticipate that the client or supervisor must reach some decision upon your completion of a task and before proceeding to the next task or in order to select between alternatives, indicate such a decision point between tasks and mark it on the timeline.

lb prepare a checklist to carry out a task, list major elements of the task to the extent possible. In thinking about the dimensions of each task, anticipate whether one or more of them must be addressed earlier than others because of required lead time. Listing the areas of research and information needed from the CFO should prompt the associate to realize that the CFO may require time to obtain some of the information, particularly that which involves a policy decision. Further, the CFO may be out of town or otherwise unavailable for one or more days. If the activities composing a task depend upon the outcome of earlier activities, then it is often useful to diagram the task and to periodically reassess the timeline.

For example, Task number 2(a) is to determine questions for the CFO, and items to research to prepare questions. These include:

Client's objectives
Eligibility (class or specific persons; what about subsidiaries?)
Who will be administrator or administrative committee?
Yield formula — and check whether less for separation from service
How does the company want to define form of benefit payment upon death, disability?
How does the company want to define "retirement"?
Frequency of statements of accounts
Vesting schedule for employer supplements
Effective date
Update research on applicability of ERISA

Monitor Progress, Adjust Work Plan

Monitoring means comparing actual time and performance of major tasks with work plan estimates and the timetable.

Here are keys you can adapt to manage an assignment as departures from estimates occur, depending on assignment complexity and your role, level of accountability, and authority.
 

• Identify the departure from estimated time or changes in strategy or in major tasks from what was expected.
• Determine whether the departure will be significant — assess the implications to supervising at-torney, client, and your own workload.
• If significant, perform a trade-off analysis. That is, identify and evaluate the feasibility of alternative adjustments or courses of action.

1. If actual time required will exceed that estimated, assess:

• Whether the result can be reached another way without incurring delay.
• Whether delay is acceptable to supervising attorney and client.
• What new schedule you can meet.
• What the additional time will cost the client (or the firm if fee is fixed).
• What resources would decrease or eliminate the additional time needed.
• Whether the client would receive added value from the increased time and cost.
• Whether the increase in time will accelerate your learning curve.
• How you can integrate the schedule/timetable change into your workload.

1. If strategy, major tasks, or work product will depart from what was expected or planned, assess: C> How else the objective can be reached

• What the advantages and disadvantages are for the client.
• How the change will affect estimated time and/or costs.

After you have completed your analysis and arrived at a recommendation, confer with the supervising attorney.

Missing Information and Resources

To sensibly create and carry out a work plan, obtain information critical to a meaningful analysis. An analysis and work product based upon hypothetical facts because important information is missing seldom benefits anyone. The work product may contain good preliminary research but, as a work product, is probably useless until further developed. New lawyers quickly spot what facts are missing, but often fail to look at a file soon enough to plan and estimate lead time needed to gather missing information and to avert preparation crises.

If they notice in time that information is missing, new lawyers often omit the next step: weighing the costs and benefits of obtaining the missing information. In evaluating the degree to which you need to find missing information, the cost of time and the effect of delay must be weighed against the expected benefits of the information — such as a more meaningful response, additional choices, or opportunities — in the context of the supervising attorney's expectations and the client's objective.

If the lawyer concludes that data is needed, the next step is to locate it. A new associate often fails to consider how to gather information which is not in the client file or in the library, other than by asking the supervising attorney. In many situations, however, the supervising attorney is neither the only nor the best source of factual information.

Locating missing information generally requires two steps. First, determine a primary source and one or more secondary sources. Rarely is there only one source of information. File correspondence and documents may refer to primary and secondary sources of the information you seek, or another attorney who has handled similar matters or knows the client may give you suggestions. Second, decide which sources to contact or use. If it is not appropriate to contact a person who is the primary source, decide which of the secondary sources to contact and confirm your proposed action with the supervising attorney. If you can foresee the need to contact resources, cover this with the supervising attorney when the assignment is given to avoid delays later on.

CONSIDER:

Suppose the firm is competing for a prospective client's business and will submit a proposal on how it would approach the project and accomplish the result. The first task is to secure background information about the company. Good beginning sources for public companies are the latest annual report to shareholders and proxy statement. These materials provide information on ownership, management, directors, compensation of the five most highly compensated executive officers, identity of the company's accounting firm, relevant financial highlights, new products, pending litigation, and registration statements. Computer data base searches for report data, relevant newspaper stories, and litigation can also highlight planning needs or legal difficulties the company is experiencing. Often these investigative tasks can be delegated to an experienced legal assistant, after deciding the scope of information wanted.

CONSIDER:

You are given a litigation assignment to draft interrogatories to determine how the plaintiff company stored a chemical product that your client, now the defendant, manufactured during the months in issue. In structuring the questions, you discover that they could go on and on if all possible storage procedure details are covered. Some of the inquiries are prelimi-nary and consume too many of the 25-question maximum permitted by the jurisdiction's local rules governing discovery. You would like to eliminate some of the preliminary questions and rework others, but you need more knowledge of the industry. How do you go about obtaining the background you need? You might consider contacting a source in the client company, or one of its customers, and then clear what you propose to do with the supervising attorney. (Here, of course, we are talking about obtaining background information; factual issues should not be decided on the basis of these sources: you want the plaintiffs response.)

CONSIDER:

A supervising attorney assigns a research project on Wednesday that is due on the following Tuesday. The associate opens the file late Thursday afternoon and realizes that there is no information on the amount and nature of common stock ownership in excess of five percent. The supervising attorney left the city earlier that afternoon for an out-of-state meeting.

What are the options?

One option is to move on to another project, setting this assignment aside until Monday. What if, however, the associate learns on Monday that the supervising attorney will not return to the office until midday Tuesday? Some new lawyers adopt the "word from the mount" mentality: if the supervising attorney is unavailable, paralysis sets in until he or she returns. Another choice is to formulate an analysis in the hypothetical “what if” format. The hypothetical conclusion, however, may be to no avail, despite its merit as preliminary research: the client expects a real answer, a workable solution. Hence, the supervising attorney cannot formulate an overall strategy because it depends on this piece.

A better approach is to determine likely sources first. Then, if you have not had direct client contact, ask the supervisor's secretary to ask, when the supervisor calls in, whether you ought to contact the client or the secondary source. If the supervising attorney does not call in on Friday, or does not respond to the question, find out if others have worked with the client (and supervising attorney) and ask their advice.

CONSIDER:

An associate receives an assignment in May which requires locating and interviewing an expert witness. The trial is set for October. The associate knows that the type of expert needed will probably be a professor at a local university. When should the associate contact candidates and make a selection?

If the associate waits until June to begin making inquiries, faculty members may be on limited summer schedules and the associate will have trouble finding an appropriate expert in time. Procrastination yields predictable panic in the face of governing procedural rules, strategic assessments, and practical scheduling realities. Procedures may demand endorsement of the expert within a certain period of time before trial. An alert associate will review the file when the assignment is given and make a diary entry accordingly to avoid this (predictable) dilemma.

CONSIDER:

A second year associate is assigned to prepare a per-sonal injury case for trial and is given the name of an out-of-state physician as a potential expert. The associate contacts the physician and sends appropriate data for the physician to conduct an analysis and prepare a report. The pretrial order must be filed in 90 days. When would you contact the physician again to follow up?

What actually happened?

Three days before the pretrial order was due, the associate called the physician's office to find out why the report had not been sent. The associate had not contacted the physician since sending the data and did not know the physician's opinion. (Yes, you read this correctly.) The physician was out of town and the physician's secretary informed the associate that the report had been mailed three days earlier. What should the associate do now? This associate asked the secretary to telecopy the report draft to the firm. The secretary replied that the office did not have a telecopier but agreed to send it by express mail. Since it was almost 5:00 p.m. in that time zone, she mailed it the following day.

On the day the pretrial order was due, the copy of the draft arrived. The associate noted, however, that it failed to address two critical issues. The Doctor was still unavailable. The associate decided to list the physician as an expert witness. (Opposing counsel had refused to agree to a motion for extension and the judge had denied the associate's motion.)

COMMENT

The lawyer could have easily prevented this out-come by following up periodically with the physician. Some new lawyers, not having juggled several matters before, neglect to follow up on one case until they are facing a crisis, because they are concentrating on another matter. Even failing that, the associate could have requested a contact in a law firm in the city where the doctor's office was located to obtain and telecopy the report.

APPLYING THIS EXPECTATION TO YOUR RESPONSIBILITIES

Manage your assignments effectively by creating a work plan, monitoring progress, adjusting the work plan, and delegating appropriate activities to your secretary:
 

• Break projects into manageable parts.
• Organize the file.
• Construct a timetable and budget time.
• Create checklists to carry out major tasks.
• Enter tasks onto to do lists.
• Assess benefit and cost of obtaining missing information.
• Compare actual time and performance with what was expected.
• Identify and assess impact of anticipated departures from estimates.
• Evaluate course of action, alternatives.
• Make recommendation.

Make sure you are on track

It is up to you to periodically check that your approach is on track to reach the objective of the assignment; ask yourself why you are doing what you are doing.

You are now applying your analytical capabilities in the context of the client's objective. The following questions and discussion highlight three areas to include in gauging whether you are developing workable solutions and responsive work products.
 

• Have I investigated relevant new issues?
• Have I developed workable alternatives and recommendations? Have I adapted forms to meet the client's objective?

Be Alert to New Issues

The supervising attorney may not identify or dis-cuss all issues that might need to be researched and analyzed. He or she may not have anticipated what you would find. If research and analysis leads you to another relevant line of inquiry, do not disregard it simply because the supervising attorney did not ad-dress it when making the assignment. Anticipate tasks that almost certainly will need to be tackled soon. If you are unable to judge whether to investigate the is-sue or how to proceed, or to identify a major issue outside of your area of substantive specialization, discuss it with the supervising attorney. See 6.05 [Part II, Expectation No. 6: "Communicate Progress and Status"]. First, however, think through how you would proceed before seeking his or her assessment. That is, show initiative to identify choices on how to proceed, anticipate the pros and cons of each, and decide which you believe is best.

CONSIDER:

An associate is asked to draft interrogatories to determine how the plaintiff company stored a product that the client, the defendant, manufactured. While scanning some annotations, suppose the associate notices a situation in which a company had farmed out storage to an independent operator. The associate does not know whether the supervising attorney had considered and eliminated the possibility of third-party storage.

What went right?

This associate left a note for the supervising attorney that raised the possibility and requested a response only if the supervisor determined that questions about this alternative were inappropriate. The supervising attorney scribbled on the note that this inquiry should be made; he had not intended to infer that the storage location had been clarified.
Questions the lawyer asks or comments made by the client, coupled with familiarity with a client's business and industry, may prompt ideas for preventive measures or a related planning opportunity.

CONSIDER:

An associate is assigned to pursue collection against a client's corporate customer and is given copies of the wholesaler-client's building material invoices and statements. Should the associate reviewing these documents also be thinking about steps the client could take to reduce problem accounts from now on?

The associate determined that the client should consider obtaining personal guarantees for certain categories of corporate orders to facilitate future collections. The associate also suggested that the current delinquency problems could be reduced if new invoice forms were drafted to show interest charges, and if the client tightened the credit application form and required a financial statement. The associate explained why the latter measure would also provide additional remedies if default occurred.

Result:

The client asked the associate to work with the credit manager to create new forms. Soon afterward, the client shared the associate's advice with a friend in a different business who had encountered similar problems and the firm was retained by that businessman.

When you have completed assigned work on a particular phase of a project and may not be involved in the remainder of it, record observations that will have continuing relevance to the supervising attorney and client. From your work, you may be in a unique position to anticipate some problems or identify additional planning opportunities that may arise. Your supervisor and whoever picks up the next phase will appreciate some background and your assessment of what could lie ahead.

CONSIDER:

The associate has finished drafting documents for the sale of a commercial building by a financial consulting firm to the firm's client, a real estate company. The supervising attorney mentioned a few days ago that the client and the consulting firm are negotiating joint venture. The client has purchased several commercial properties nationwide and wants to engage the consulting firm to structure the financial terms for the client's large commercial tenants. They expect to complete their negotiations and want an agreement drafted in a few days.

The associate has had numerous conversations with the client and the consulting company while drafting the transaction documents. During these conversations the associate observed that the two companies have very different decision-making philosophies: the consulting company moves slowly and involves each executive in the approval process for large financial packages. In contrast, the client's decisions are usually made by the president alone. Because the supervising attorney has not dealt with the financial consulting company before, the associate mentions this observation. The supervisor considers this practical operational factor in handling the new joint venture agreement.

Develop Workable Alternatives, Recommendations

Clients and supervising attorneys usually expect more than an answer to the question, "Can we do it?" Your job does not end with "yes" or "no." If your answer is "yes," then the next question may be, "Do you think this is the best way to do it?" If your answer is "no," they usually want your assessment of "How else can we do it?" "What are the advantages and disadvantages of those alternatives?" Or, "What are the risks if we proceed?" Suppose you are asked whether a specific form will work in a transaction and you determine that it will not — as is. Next determine whether you can work with the form, make changes, and use it. If not, can you find another form to adapt? A client does not want to pay for the response, "No, that won't work. . . " without exploration of alternatives that may work. And, generally, the billing attorney probably would not have made the assignment if he or she did not believe there would be some way to reach the client's goal.

To address these questions, think about what the client ultimately wants to do. What is the relative importance of those elements that are causing the problem? Can you restructure those elements and still reach the ultimate goal of accomplishing the transaction? "What if. . . .?" The essence of a "what if” analysis is the ability to go beyond your initial assessment of the most likely outcome, based on the planned course of action or current state of affairs. It is the ability to anticipate the alternative future events or conditions that may occur, to analyze the relative probabilities of occurrence, to determine their impact, actions the client can take, and then to develop and recommend the most effective strategies to reach the ultimate goal. Performing a series of "what if analyses requires attention to practical factors as well as legal factors: business conditions and trends, the client's predisposition, priorities, psychological needs, concerns, economic information, and so forth.

CONSIDER:

The lawyer, as an ex officio board member of a client company, is asked to give his evaluation of whether to issue stock to employees to increase productivity and promote loyalty. The lawyer assesses the hidden costs. They include minority shareholder rights on sale of the business, dilution of the founding group's interest, and disappointment over lack of opportunity for any dramatic rise in value if the company does not go public. The lawyer explores with the client whether issuance of actual or phantom stock really would foster increased productivity and loyalty. Then the lawyer expresses alternative incentives to increase productivity and promote loyalty.

CONSIDER:

A project owner is sued on a mechanic's lien by a supplier-subcontractor. The owner has the opportunity to bring a third-party action against the general contractor for failure to pay contract funds to this supplier. The attorney can include in the action all other claims the owner has against the general contractor for additional amounts that are not the subject of the plaintiff's mechanic's lien action. The lawyer discusses with the owner the legal consequences of failing to include these additional claims: they are compulsory claims and are waived if they are not included in the third party action. The client explains that he or she is still involved in negotiations with the general contractor for remaining work. The lawyer and client discuss negotiating strategy and the lawyer explains the deadlines for deciding on whether to include the claims in the third party action.

Adapt Forms

Forms provide a starting point from which to spot issues and problems that may need to be considered, to identify alternative solutions, and to craft language. A substantial amount of time frequently can be saved by searching the firm's centralized internal work product/precedent file or data base. Ask firm members whether they have developed forms for the subject you are handling. Be advised, however, that the per-son you ask is probably not thoughtfully reflecting on the situation you pose and is merely suggesting that a particular form or file may be helpful.

Do not use forms indiscriminately: each form was developed to meet another client's objective and may have represented a compromise at that. Forms developed by firm members, however, may reflect their or the firm's standards for quality and preferences for handling problems. Commercially available forms can also be useful where firm members have not developed a document. However, unlike the firm's forms from which reference can be made to the file for the context in which the form was developed, the context of commercial forms is unknown and compliance with current law may be unclear.

APPLYING THIS EXPECTATION TO YOUR RESPONSIBILITIES

Maintain your focus on the client's objective: Whenever possible, set the analysis aside and then consider whether you
Investigated relevant new issues.

Developed and evaluated alternative strategies.

Examined analysis and forms from client's, adversary's, or related party's perspectives and objectives.

Adapted forms to accomplish the objective and priorities. Made workable recommendations.

Let the client know the latest progress and case status

Good communication among the supervising attorney and others assigned to a matter is imperative for good client service. As the associate assigned to a matter, you must take initiative to keep the supervising attorney abreast of developments in the project or case. This is an integral part of your management of the assignment and the supervising attorney's management of the matter. It gives the supervising attorney an opportunity to timely assess whether strategy should be adjusted and to communicate progress to the client, who may otherwise feel that the firm considers his or her business unimportant. In addition, it behooves the new lawyer to check in to ensure that he or she is proceeding on course and is informed of developments impacting on the project.

Each supervising attorney has requirements, or possibly some idiosyncrasies, about being kept up on a matter's status. The expectation may be that you will supply a comment in the hall, a note, or a formal status memorandum. When receiving the assignment, the assigned attorney should clarify what is expected by the request, "Keep me up to date. . . ."

Or, ask others who have worked with the supervising attorney about what he or she has expected in the past. Do not expect the supervising attorney to track your progress by looking through your time slips. Unless otherwise instructed, you should follow some generally accepted and well-considered practices. Copy the supervising attorney on correspondence you have prepared and sent. If you meet with the client or another person outside the firm on an assignment, prepare a file memo summarizing the meeting and copy the supervising attorney. When you conduct telephone conferences, summarize them in a file memo. If you take depositions, memo the file with your assessment. After internal strategy conferences, memo the file. (Using a tear-off pad of prepunched file memo forms makes this procedure easy to follow.) Additional "checkpoints" that generally note when you need to communicate project status, depending upon the context of a project, include:
 

• Number of hours
• A period of time
• Completion of a designated major task or nonoccurrence of an event
• Need for clarification, guidance, or judgment
• Significant increase in time over estimate
• Material change in cost or strategy
• Mistakes

Number of Hours, Period of Time, Completion of a Designated Major Task, or Occurrence/Nonoccurrence of an Event
Litigation and other legal activities are not isolated economic events: they are related to the client's plans, ongoing operations, and changes in circumstances. Thus, the assigned attorney should check with the supervising attorney periodically to find out if there have been new developments that affect the assignment. A client's activities are not suspended upon assignment of a project; between the engagement process and completion of a work product, the client may take actions or face related problems that affect the assignment and may require a mid-course correction. Indeed, the client may be changing a specification on the way back to his office from the initial meeting.

Projects of substantial duration in which you have little or no direct client contact require that you be especially diligent to confirm your planned course of action periodically with the supervising attorney. Suppose, for example, the supervising attorney believes a complex litigation matter which you are preparing for trial will settle and directs you to place further pretrial preparation on hold. You must recheck the status frequently so you will be ready to gear up if negotiations falter. Or suppose the supervising attorney, on instructions from the client, directs an associate to make exhaustive efforts to prepare for trial. A month later the client sees an important opportunity to resume business dealings with the "other side." Perhaps the client company had wanted to teach the other side a lesson — and has succeeded sooner than anticipated. Flexibility becomes the key factor. Everything can change with a phone call. Do not assume that an assignment given is an assignment written in stone.

When receiving assignments, find out, if possible, the time intervals at which you will be expected to report progress or status to the supervising attorney. Also determine whether a handwritten note, a more formal written report, or an oral report is expected. (The supervising attorney's secretary or legal assistant is a valuable resource.) A supervising attorney may also expect to be informed of meetings an associate sets so he or she has the option to attend. For example, sufficient notice might consist of a note saying: "Fm planning to meet with the client's CPA on such and such a date to. . . . Let me know if you want to attend." The scheduled meeting date should also be entered in the docket control system, and on the associate's and supervising attorney's calendars.

Need for Clarification, Guidance or Judgment

CONSIDER:

A general counsel engages a partner to prepare for and handle a hearing before the National Labor Relations Board. The partner delegates the case to an associate who proceeds to obtain a favorable result. The associate does not contact the client following the hearing.

Result:

The client is later annoyed that he did not receive a telephone call about the outcome, and because the associate incurred time to produce an eight page written report.

What went wrong?

Two days after the hearing the associate dictated the report to the client and submitted it to the partner. The partner was surprised to see the report because he assumed that the associate had related the outcome to the client immediately. In other engagements, the partner's communication with this client has been informal.

Comment:

The associate should have reported the result to the partner and clarified whether the partner intended to call the client or if he was expected to follow up with the client and prepare a report. The client's ultimate dissatisfaction in the wake of a successful result could have been easily avoided.

What if the hearing had been unsuccessful? It is generally prudent for an associate to ask the supervising attorney how to handle this situation.

When seeking the supervising attorney's judgment or guidance,/*>*< analyze the problem yourself and prepare to recommend possible solutions. For example, "The judge wants us to meet in conference in chambers or by telephone conference. I have not appeared in her court before. Here's the situation. . . . The other side wants to handle it by telephone conference. I think that we should insist on meeting in chambers so we can educate the judge about. . . . What do you think?"

CONSIDER:

To prepare an appellate brief, the firm's appellate lawyer first meets with the trial lawyers and then formulates a timetable. After researching points of error and composing arguments, the appellate attorney again confers with the trial lawyers to validate particulars of the brief. They determine that one point of error is stronger than another.

Significant Increase over Time Estimate

Occasionally only through work on a matter does it become clear that the time allocated for completion of a task or project will not be sufficient. You are well advised to notify the supervising attorney before the deadline. A supervisor should not have to track down an assigned attorney on the due date to learn of a delay and the reason for it. In any event, notice allows the supervising attorney to assess the impact of the projected delay and options, and to determine whether to adjust the deadline, enlist help, reassign the case, or timely discuss the problem with the client.

If you believe the supervising attorney may be un-aware of the reason that a project has taken significantly more time than expected, consider attaching a note to it explaining the reason for delay. This information may help the supervising or billing attorney to judge how to bill the client for the work. It may also help the supervising attorney evaluate your work.
Material Change in Cost or Strategy

CONSIDER:

An unanticipated problem arises on the project as-signed to an associate. In estimating the time that would be spent to continue on the course of action, the associate determines that, unless the problem is resolved fully in favor of the client, the cost would exceed the amount of recovery under the most likely outcome.

What would you do?

The associate informs the supervising attorney of his assessment based on the current status and furnishes a rough estimate of fees the client would incur under best, probable, and worst case scenarios. This information positions the supervising attorney to timely discuss the situation with the client's general counsel.

Mistakes

We all make them. Do not hide them. When you realize that you have made a mistake, immediately call it to the supervising attorney's attention. It may be cured if acted on promptly. As time passes, the client or others may have taken actions that make resolution of the mistake more difficult or impossible.

APPLYING THIS EXPECTATION TO YOUR RESPONSIBILITIES

Communicate progress and status to the supervising attorney at key checkpoints. Determine which apply to each of your active matters:
 

• Number of hours.
• Period of time.
• Completion of designated major task or occurrence/ nonoccurrence of an event.
• Need for clarification, guidance, or judgment.
• —First think through the problem and recommend a solution.
• Significant change from time estimate, cost or strategy.
• —Anticipate, report departures from estimates or expectations.
• Mistake
• —Immediately call to the supervising attorney's attention.

Make your skills and work relevant

The supervising attorney expects a completed, useful work product that is responsive to the specific goals of the client. Your work product, oral or written, should represent you as your best effort. If what you submit is not your best effort, you only hurt yourself at review time.

Some work products are prepared only for the supervising attorney; others are intended for the client as well. Therefore, consider your audience and how the supervising attorney plans to use your work product to inform, solve problems for, persuade, or otherwise provide service to the client. Organize and prepare appropriately. A supervising attorney may decide to give the client a copy of a memorandum that answers a question, analyzes "what ifs" to arrive at workable options, or reports telephone conversations or inter-views — particularly if it is in a format that does not have to be reworked first.

The supervising attorney expects to receive a work product memorandum that answers a question, assesses how to use a case, creatively evaluates alternatives, recommends a solution, and so forth; he or she wants help — and expects you to provide something a client will pay for! See 6.04 [Part II, Expectation No. 5: "Stay On Track By Thinking Broadly and Narrowly"]. Some new lawyers retain an academic approach and regard an assignment, consciously or unconsciously, as an exercise intended to demonstrate to the supervising attorney a grasp of technical research apart from its application to the real problem. They view the client as an abstraction and fail to consider that the supervising attorney requires an answer for the client. (When drafting your "questions presented," check whether they are phrased in the abstract. If they do not incorporate facts, consider whether your analysis and writing are focused on the client's goal or problem.)

In preparing a memorandum of analysis, remember that the supervising attorney will not be as familiar with your research and analysis as you are. He or she may be able to devote only a limited amount of time and attention to digesting its essence and to reviewing the facts and cases on which it is based. Although the supervising attorney may want to review your analytical process at some time, the immediate question upon your completion of the product is usually a variation of, 'What did you find?" "What do you think we should do and why?" What if we do this. . . what if we do that?" "How significant is that problem for us?" Or What is the controlling case law? Can we use it?" Anticipate and answer these types of questions. Place yourself in the supervising attorney's shoes as you work on the project and ask yourself: If I had delegated this assignment, is this work product what I want and need to move on to the next step? Does it answer the question? Can I use it now and call the client? Can I give this to the client? (Or, would the client wonder, "What did he say?") Also make a note of areas that you have not investigated or analyzed but which may bear consideration at a later stage.

When possible, set aside your work product for a day; after an interval, it becomes easier to reread the material from your reader's perspective and then to make it clearer. Many firms or individual departments have incorporated examples of what they consider outstanding memoranda organization into a manual or form file. The following are several guidelines: state the objective or question presented, then a brief answer or summary recommendation, and between two and five key reasons to support your summary or answer. Begin the body of the work product with a statement of facts, and assumptions, followed by the analysis, and conclusion. The conclusion of your research is often based upon many factors, but the written and oral communication of your conclusion should be clear and concise.

New lawyers who view the work product they submit for review as "just a draft" tend to postpone the essential steps of: checking transition, cite-checking, proofreading, putting court documents into filable form, and refining organization, sentence structure, and grammar. As a result, they present the supervising attorney with a half-baked recommendation or leave problems unresolved that, given more thought, could have been successfully tackled. As discussed earlier, in 6.01 [Part II, Expectation No. 2: "Understand and Clarify Assignments"], a supervising attorney's request to see a draft does not translate into anything less than a request for a completed product that is ready to go on letterhead. The reasons a supervising attorney asks for a draft may vary, but they usually relate to further thought or work that he or she plans to put into the matter, not to the associate's second chance to polish the work product.

Sometimes a supervising attorney will make changes to your work product without explanation or even any mention. Check the file or computer files containing prior versions to find out if changes have been made and to review them. If you do not understand the purpose of a change, make a note and ask during a later opportunity. Also consider asking the supervisor's secretary to save the redlined copy for you, to make your review easier.

Work Product for Client
 

1. Place yourself behind the reader's desk. Do not assume that the reader knows the subject matter as well as you do. Consider drafting your summary an-swer deductively, unless instructed otherwise. To test it, ask yourself whether, standing alone, it is sufficient for the reader to reach a decision, take action, and understand what has been accomplished. At all times, the client should be able to relate your rationale and support back to the objective and to the recommendation or conclusion.
   
   Express your conclusion, if possible, from a positive perspective — it moves the reader closer to reaching the objective — such as how to do something. What if your conclusion is that the client's proposal will not work? Can it be done another way? To avoid being perceived as unhelpful or a deal-buster, you might include in your analysis statements illustrating other means to reach a goal if specified elements in the proposal were changed or certain steps were taken.
    
2. Assume that the reader may be able to devote only a limited amount of time and attention to your presentation. Consider: If a memorandum exceeds 6-10 pages, would a table of contents be helpful to your reader?
    
3. Order the key points in the body of the document consistently with their sequence in the answer; do not bury them.
    
4. Present the legal analysis in the context of what is significant to the client, such as helping the client to arrive at a business decision. Clients want to know what the lawyer's advice does for them; clients are not interested in the tortuous process that the lawyer fol-lows in converting that client's goals into legal concepts to which the attorney can apply legal principles in arriving at suggestions for resolution of problems or recommendations to further those goals. Clients are not interested in theoretical points. They are interested in those suggestions and recommendations.
   
   When writing to inside counsel, the ultimate question is still whether the advice will work from a business perspective. In addition, however, you must show your analytical skill, in a manner similar to the method used in writing for a supervising attorney. See 4.09 [Part I, Expectation No. 20: "Understand the Expectations of A Corporate Law Department"].
    
5. Avoid a tendency to share all details.
    
6. Clearly set forth and establish priority among the material facts and assumptions upon which you base your analysis and recommendations.
    
7. Note where any material information is missing, indicate when you expect to receive it, and describe its anticipated effect on your conclusion.
    
8. Label legal considerations, practical and business factors, and caveats so that the client is clear about these distinctions.
    
9. Use the client's language. Use this opportunity to show familiarity with the client's business, and with the way the client operates and thinks. If the client processes concepts through analogies, use them. If your primary support for the conclusion is complex, consider using graphics or illustrations and short paragraphs.
    
10. Clearly mark each draft by number and date to avoid confusion.

Consider this deductively structured summary directed to the client:

Objective: How to comply with health care continuous coverage law — effective for the 1987 plan year
Summary: Adjust plan to offer an employee the right to buy continued health coverage (group rates) at termination (except if terminated for gross misconduct) for himself, a de-pendent, a child who is no longer a dependent, and a divorced spouse.

Points: • Law requires the plan to add this option. B Corporation's current group health benefits already include coverage for widowed spouses which is required by the new law, but do not offer continuous coverage in these other situations.
 

• In the plan, B Corporation fully pays the employee's coverage; an employee can elect to cover spouse and dependents at cost of that additional coverage according to the carrier's rates.
• B Corporation may charge up to 102% of cost to the plan for any continued coverage elected.
• Numbers on cost to the plan for contin-ued coverage are being prepared by the carrier in consultation with us and the employee benefits administrator, and are expected at the end of the month.
• B Corporation can use the requirement that notice be given when the new benefit is offered as an opportunity to communicate to its employees the value of current benefits and this enhancement.

Requests for Proposal

More and more, prospective corporate clients are selecting a law firm to handle a complex transaction or litigation based on the firm's response to a Request for Proposal [RFP] (or Request for Quotation). If you are assigned to draft the response to an RFP, structure your presentation in the order directed by the request. If, however, the request is less formal, is characterized as an interview process, or does not specify an order, the following design suggestions may be helpful.

Cover the firm's understanding of the project; the firm's approach; the lead lawyer's relevant experience; the qualifications of attorneys and legal assistants who will work on the project under the direction of the lead lawyer, if applicable; the firm's background; and the lead lawyer's response to questions on fees, costs, and billing method. Give the client a sense of the firm's unique capability to handle the project. Demonstrate some knowledge of the client's industry; convey an impression that the firm is interested, has given thought to the client's objective, and has a sense of the problem and a proposed timetable. Highlight the lead lawyer's case management philosophy. If the prospective client seeks full service representation, explain how anticipated projects will be cost-effectively managed and coordinated.

To effectively prepare the response, you should conduct some preliminary research about the company. Ask the client contact for clarification of the purpose of the project. An RFP often does not spell out critical background information that is needed to understand priorities, concerns, or expectations. Research should also be conducted, as directed by the lead lawyer, to anticipate and prepare for questions he or she will be asked during an interview.

APPLYING THIS EXPECTATION TO YOUR RESPONSIBILITIES
 

• Determine expected work product
• Know its purpose and recipients To make it useful, ask yourself:
• Does it answer the question?
• Can the supervising attorney use it?
• For correspondence or a memorandum intended for the client or which may be shown to the client —
• Is it written for the client? If the answer is "no, that won't work" —
• Do you address alternatives? If the answer is "yes, that will work" —
• Do you determine whether that is the best solution?

Develop your soft skills

Client-oriented lawyers translate their legal work into client service. Supervising attorneys expect new lawyers to possess or to develop skills to handle client contact positively and productively in situations they will likely encounter. A first year lawyer may be asked to contact the client by telephone, to convey status by letter, to communicate developments or request information, to attend conferences with the supervising attorneys, and to work with a client's in-house lawyers or staff.

Participating in Client Meetings with the Supervising Attorney

As associates, your first direct exposure to a client may be at a meeting with the supervising attorney. As you make substantive preparations for a meeting, clarify with the supervising attorney what your role will be. Are you to handle part of a topic or will the supervising attorney indicate when you are to address or respond to a point? Are you there because you are expected to work on the next step? Will you need to elicit and discuss specific information at the meeting?

Your role must be clear to the client as well. A client does not understand the need for, or the function of, a second lawyer until he or she makes a contribution that the client perceives as meaningful. Thus, unless your role has been explained in advance by the supervising attorney, the client may assume that an unfamiliar lawyer is in attendance only as a trainee at the client's expense.

Whether your participation is limited or extensive, concentrate on establishing rapport with the client. Introduce yourself; observe the client's expression of interests; be alert for an opportunity to offer a comment or question on the client's art, community project, and or other interest. Seek to engage in a brief conversation before the meeting begins as an opportunity to create a good first impression and establish a measure of rapport. If the meeting takes place in a dinner setting, it is particularly important to carry the conversation periodically to give the supervising attorney a moment to think and to eat.

To be prepared, some threshold information should be obtained before a meeting. Find out the:
 

• Purpose for the meeting;
• Intended result, actions;
• Agenda;
• Attendees;
• Your role; and
• Anticipated length of the meeting.

Your Meetings

Law schools do not give instruction on how to plan and conduct an effective meeting. More often than not, you are left to observe other lawyers, some of whom are not particularly skilled at planning and conducting meetings.

Have a Clear Purpose

Define the reason for a meeting. What should be accomplished? Many meetings are unnecessary. Again, unless you can identify a clear purpose for a meeting and what you expect to accomplish, the session is probably unnecessary or premature. The objective may best be handled in writing, over the telephone, or possibly by your unilateral action. For example, it may be easier to secure commitments on a one-to-one basis through separate telephone calls before holding a meeting. Politicians know the value of this kind of "lobbying" and decision making before the decision is formally made.

Prepare an Agenda

To accomplish your purpose and maintain control over the direction and progress of your meeting, prepare a written agenda of the topics you intend to cover. Have a specific objective for each item. You may be able to handle some preliminary items by telephone. Determine the order in which the topics should be addressed and set time limits for the meeting and for each topic.

Beginning the meeting with a noncontroversial item can often test the waters effectively, allowing you to adjust your strategy for the tougher topics. Place the more difficult topics after the "testing topics" to allow sufficient time to deal with and resolve them. Do not put off make-or-break items until the end, however. List them early on the agenda. If they cause an impasse, time spent on earlier items may have been wasted.

Consider whether you can accomplish more if you distribute discussion materials, as well as the agenda, in advance and how far ahead it should be done. Because written materials can contribute to the tone of the meeting, always evaluate their effect and how to package them.

Decide on Necessary Participants

Have a specific reason for including each person in the meeting. Determine who needs to agree or take action to accomplish your purpose. For example, if you are convening a negotiating session, determine whether each person has authority to negotiate at all. Sometimes the supervising attorney may wish to at-tend your meeting. Inform his or her secretary of the date, time, and purpose of each significant meeting and include it as an entry on the docket system.

Conduct the Meeting

It is important to construct an opening statement and preliminary observations or questions to set a tone conducive to achieving your purpose.

If you convene a meeting, you are the leader and are responsible for maintaining control over its direction and progress. Anticipate problems you may face in maintaining momentum or control, such as extraneous discussion or personal attacks that must be dif-fused early.

Problems of control can arise within your own camp as well as with other participants. Lawyers often painstakingly prepare clients about what to expect during the course of a meeting. In preparing experts in a litigation matter or outside advisors, however, the same lawyers frequently limit preparation to substantive issues and fail to talk with them about anticipated procedural difficulties, or the scope of their participatory roles. Expert witnesses or outside advisors focus on the facets of the matter requiring their respective assistance. Although the expert's comments are normally limited to a particular issue, an expert can sometimes offer an unsolicited analysis of the remainder of a transaction as viewed from his or her particular bias. To ensure that an expert understands his or her role in the meeting, spend some time discussing the meeting's purpose with the expert.

Thorough preparation in advance of any meeting will allow you to focus on the behavior of each participant and let you determine more effectively how to reach agreement or the action you desire, to orchestrate agreement, for example, demonstrate how each participant will benefit so that, at the conclusion of the meeting, each person willingly assumes responsibility for a task. If you are rehearsing your presentation as others speak, or you must concentrate unduly on your delivery, you will miss reactions to your ideas, strategies, or recommendations. Summarize points and decisions frequently to ensure that everyone understands the views presented.

Client Employees

Lawyers often neglect the employees the client has invited. Although these individuals may not be decision makers, they do influence the client and the client wants their opinions; otherwise they would not have been invited. Show an interest in their questions and comments and take care not to alienate them inadvertently. Learn each one's role and perspective, and consider how your recommendation or solution to a problem affects them. To the extent that your solution or recommendation will benefit them, communicate those benefits to them as a means of gaining their cooperation and support.

Closing the Meeting

When you have achieved your purpose, stop. Conclude the meeting on time with a summary of the planned action steps to be taken and a timetable. En-sure that each participant understands how assignments will affect the matter's progress. Coordinate responsibilities where possible to promote interim progress. Within twenty-four hours, prepare a memorandum of the meeting for yourself, including each attendee's concerns, biases, suggestions, and other in-formation, even though some items no longer appear significant. This data may help you later if circum-stances change. Also, send each participant a written summary of the assigned responsibilities, action steps, and timetable. (Make entries on your calendar, docket system, and To Do list, as appropriate.)

Initiating a Call

Before placing the call, decide exactly what you want to accomplish, list the points you will cover and questions to ask, and gather the material you anticipate will be needed during the conversation. Do not wing it. The client is busy and will not welcome a second call to address points or questions that should have been covered the first time.

Respect your listener's time. When initiating a call, you might ask, "Do you have about five minutes to answer some questions I have about work papers you prepared for our client . . . ?" If the listener appears harried or preoccupied and unable to give you full attention, offer to call back and set up a telephone appointment.

Enter a telephone appointment on your calendar or day planner just as you would a scheduled meeting. Scheduling the return call will eliminate the round of telephone tag you may encounter if you respond, "Give me a call first thing in the morning." What does that mean? Effective use of a voice mail system also reduces telephone tag.

Small talk, while necessary to set the tone for a meeting, does not always serve that purpose in a telephone call. Generally, do not linger over pleasantries — get to the point. However, beginning a call on a positive note is important. It is annoying when a caller jumps in with questions that presume the listener has material relating to that matter on the desk and has been studying it immediately before the call. Worse, if your assignment is to gather information from a client, you are not likely to do well if you open with, "I don't think your deal is going to work, but I need some more information." What is the point? "You have already decided it will not work.

If you are expecting someone to return a call, consider writing a note to yourself listing the points you intend to cover. When the call is returned, you will not find yourself scrambling to reconstruct what you called about or remembering only one of the several questions you intended to ask.

If you want to keep the phone call short, set the tone with, "Hello, thanks for returning my call. I called because. . . ." Compare this opening with, "Hi, how are you doing? Wasn't the game last night great?"

Handling Incoming Client Calls

When a client calls to ask a question or discuss a matter, inexperienced associates often exhibit a range of reactions, frequently beginning with surprise. Some display confidence and judgment. Others are flattered and show a desire to demonstrate their knowledge; still others demonstrate their overwhelming concern over having to handle the call even before they know what it involves. The latter two frames of mind impair the ability to carefully listen to the client. Listen to a question and determine (1) whether the client expects an immediate answer and, if so, (2) whether it is appropriate to respond immediately or whether the question requires additional thought or research. Listening means blocking out your premature thoughts and concentrating on what is said.

If the client expects an answer immediately and you decide you are comfortable providing it, qualify your answer as needed to give yourself an opening for potential revision upon further reflection. For example, you can qualify the answer by saying, "If I think of anything that would change what we've discussed, I will call later today." A qualification goes a long way in preventing this painful experience: checking the support for the answer, finding it requires revision, calling the client, and receiving a surprised and irritated response that, "You said it was OK, so we did it."

There are ways to postpone an answer so that the client believes you understand the question, know how to go about finding an answer in a reasonable amount of time, and will get right on it. First, categorize the reason you should not or cannot respond immediately: "the question is complex and requires additional thought or research because. ..." "I must check the file to find out. . . ." "I need to make a telephone call to. ... to find out. . . ." Or, some other, similar comment. Second, estimate when you will call back with a response and tell the client when to expect a call.

The great majority of clients will respect your professional integrity if you frankly say you do not know the answer. Of course, you should couple your admission with whatever useful information you can give, such as the principles generally applicable in the area of the client's question — expressed in terms that are meaningful to the client. You will not impress these clients if you try to soft shoe around your present in-ability to answer the question. Consider also whether the client asked to speak with you as the supervising attorney's ear because he or she is unavailable. Sometimes a client's intent is only to ensure that the question is understood and will be relayed promptly.

CONSIDER:

The associate, who has occasionally assisted a part-ner on a client company's matters in conjunction with its legal department, receives a call from an operations manager. This manager runs the client's manufacturing line and has not dealt with the firm before. He requests a copy of an employment agreement the firm had drafted for the client company earlier in the year. The associate mentions her involvement in the drafting. The manager asks how the terms were developed and represents that he is entering into a similar arrangement with the company. The associate answers the question, agrees to furnish a copy, and sends it later that day.

What went wrong?

The issue was sensitive because the General Counsel and the President were restructuring that manager's responsibilities and compensation. The General Counsel learns of the firm's action and remarks to the President and says, "Who do they think manages the legal affairs of this company?"

Comments:

Inexperienced associates, as part of an outside counsel's team, must be sensitive to each client's policies, culture, operating style, and reporting relationships. If there is a developed legal department, it has the responsibility to provide legal advice to the corporation with whatever assistance it deems appropriate.

Although the associate's earlier contact had been with the legal department, the associate did not stop to think about protocol or to consider whether the manager had been authorized to call the firm.

Based on these factors and the nature of the request, the associate should have deferred a response and advised the partner of the conversation. Some clients have been known to call an associate for things they know a more experienced attorney would not give them.

Making a "Cold Call"

If you have had little or no contact with the client before, this telephone conversation will form the client's first impression of you and will also influence his or her perception of the firm as a business. Therefore, before making the call, find out whether the supervising attorney has introduced your role by reference or expects you to handle your own introduction. If the client has been informed about your involvement and role, you need only give your name followed by something like, aI assist Terry in structuring and closing large commercial real estate transactions such as yours." This introduction should refresh the client's memory of the supervising attorney's reference to you.

If, however, the client is unaware of your involvement, a more extended introduction is usually in order (1) to assure the client that his or her attorney remains actively involved and interested; (2) to preliminarily demonstrate your qualifications to work on the pro-ject; and (3) to assure the client that you have already been briefed on the objective and the issues, and that you were asked to call.

APPLYING THIS EXPECTATION TO YOUR RESPONSIBILITIES
 

• To prepare for a meeting, know:
• Purpose of the meeting.
• Intended result, actions.
• Agenda.
• Attendees.
• Your role.
• Anticipated length.
• To handle a client's telephone questions:
• Listen carefully to questions; block out premature thoughts. Then assess:
• Whether the client is asking for your answer or the supervising attorney's.
• If the client expects your answer,

when can you respond —
 

• Are you able to answer now — How sure are you of the answer?
• Qualify your answer appropriately so you can revise if necessary.
• Do you need time to respond — how much time do you estimate to prepare answer? What do you need to do to develop an answer? Who else should be consulted in developing a response?
• Communicate to the client when to expect a response.
• Explain a step you need to take to respond (research, telephone calls, check file, etc.).