Why would you want to invest your continuing legal education (CLE) time investigating legal process design?  If you are not a patent lawyer, could legal process design be used in your legal practice or in-house function?

Historically, lawyers went about gathering facts and applying the law to those facts in whatever order they wanted.  Most lawyers today still consider law an art and are generally unwilling to create or operate according to defined processes.

Due to increased legal service fees, lawyers at corporations have been trying various ways to safely reduce costs.  This experimentation by lawyers at corporations has forced some change at law firms.

One such way corporate lawyers save money providing legal services is to break a process down into sub-functions and assign a lowest cost resource to each sub-function of that process.  In the world of patent law process design, sub-functions are often carried out by four types of resources: administrative resources, paralegal resources, engineering resources, and lawyers.  This formalization of a process, I call legal process design.  Legal process design turns a law practice from an art into a science.  The production of legal work-product is performed via a defined process instead of via a lawyer’s memory of relevant issues or checklists alone.  The lawyer still thinks and creates freely as they work, but they are also walking a path of issue flow that covers all the relevant topics that are defined as in scope by the process design.  Lawyer remain responsible in real time for finding glitches in the issue flow through topics and it is incorporated into the next process iteration.

Patent Law CLE and Legal Process Design

Legal process design is the intelligent orchestration of various resources to produce well defined high quality work-product according to repeatable, trainable, measurable and scalable processes.  It is not surprising that patent lawyers have taken the lead in reducing the practice of law into defined processes since they have undergraduate degrees in science and engineering.  Legal process design would best be understood by examples covered in our courses.  However, this example will give you some idea.

Paralegal and/or Administrative Sub-function:  Gather documents needed to prepare a claim chart, such as the patent, the file history, blank templates.  Receive prior art information, specification support information, and issues spotted by the engineer, and assemble the information as directed by the engineer into the approved process template.

Engineering Sub-function: Receive the patent from the admin or lawyer, review and identify the best support for each claim, review and identify issues in the claims, specification, and prosecution history, conduct search and select the best invalidating references, review and identify the best invalidating language, assemble all issues spotted during the analysis, and monitor the admin as the information is assembled into the lawyer approved format.

Lawyering Sub-function: Answer questions from the admin and engineers as the project proceeds.  Review the work-product and verify the sources of information where issues were spotted.  Draw legal conclusions about which of the issues spotted by junior lawyers, engineers, paralegals, and admins will form the case strategy.  Discuss the findings with the client.

Identify Sub-sets of Issues

When you decide to design and implement a new process, you can’t possibly make new lawyers, engineers, paralegals, and admins into experts in a short period of time.  At best, you can select a sub-set of issues that are likely to show up in many cases, and teach them those issues first.  As they improve, you can slowly integrate more issues into the process.

As a legal process designer, you must decide which issues to start with.  Then you must train the issues in a practical way.  It can’t be all theoretical.  You have to introduce practical examples into the training materials so they can spot the issues when they come up.

Think of this first sub-set of issues like each state in the United States.  You picked them as in-scope because they are the ones that are most likely to come up over a set of files.  Engineers call this the 80-20 Rule.  Think of the process as a freeway system that drives around the set of states and quickly looks for relevance in the facts. When initial relevance appears possible for a particular state, those are the issues that require further consideration.  After you complete the freeway circle issue spotting, you then drill down on the topics based on some priority of importance to the case, such as those issues that are dis-positive.  At this point you are probably thinking … I already do this … I am just not this organized.

Well, that is what we intend to show you, what it looks like when you organize.  That is also why new associates take so long to become profitable.  They have not seen the road map through your mind. That map might be clear in the senior lawyer’s mind, but without that in-context visualization, newer lawyers are taking 3-5 years to understand the big picture.  That doesn’t scale well.  Welcome to legal process design.

Create Legal Issue Flow Charts

If possible, create issue flow charts through the major concepts in your issue subsets.  These issue flow charts teach how to flow through the issues in an in-context way, and, they note where to go in your issue subsets for more detailed law and analysis of that issue.

Create Step-by-step Instructions

It is difficult to develop best practices when everyone practices their trade as an art.  It is easier to create a step-by-step process that can be verified, criticized and followed.  The best way for a senior lawyer to do this is to create the process and note what was done each step of the way.  Over a certain number of files, you will create most of the issue flows that come up over any set of 100 files.  It often surprises senior lawyers when they realize they can break their job down into a step-by-step process.  They quickly learn that it is a more efficient and profitable way to teach new lawyers, engineers, paralegals, and admins (resources).  The subsets of legal issues identified above have a natural place in your process.  The process directs the resources where and how to make observations or comments about each issue as they move through the relevant part of the process and collect the relevant facts.

Your step-by-step process should explain what you are doing, why it is helpful to you as a lawyer, and give examples of what it looks like when each step is done correctly.  It is best to do more than talk about it.  Show them what it looks like.  Developing these video courses for CLE is our way of showing you what such a process looks like.  Although we use patent law for our process designs, you may quickly see how these concepts can be adapted to your area of law.

Create Work-Product Templates and Example Deliverables

Continue through your step-by-step process and create an example deliverable for each deliverable kind.  You need to explain what each field in the deliverable is and how to complete it.  That detail needs to be somewhere, whether in your step-by-step instructions, or instructions associated with each deliverable kind.

It is best if you can create consistency by having everyone use the same deliverable format.  It becomes much easier to teach a team of resources when there is one right way.  Later, you can customize as receiving lawyers ask for changes.  Flowing through facts and issues in an organized way helps reduce the chances that something will be missed.  Plus, considering an issue, even when not present in this case, helps new associates transfer it from short to long term memory.

Sample Comments For Work-Product

When a resource spots an issue in the file corresponding to the subsets of issues, it is best to have a sample comment they can place in the deliverable for that issue.  Over time, as they become more sophisticated, you can give them consent to use some creativity in making their own comments.  However, while they are new, it is good to use sample comments.  You can add sample comments below each issue in the issue subsets or have a separate sample comments document.

Legal Process and Work-Product Quality Metrics

The work-product created by the process must include a quality review by an experienced resource before it goes to the senior lawyer requesting the work-product.  The quality metrics are scored and missed issues and facts are used to teach everyone so it doesn’t happen again.  Low scores in any process area is a signal that you need to do spot training in those areas and develop more examples.

Legal Process Verification, Certification, and Recertification

These CLE courses do not have any written examination.  You need only watch the videos and note a verification code from each video.  But if you decide to create legal process designs in your organization, it is best to have some sort of process certification.  You need to create theoretical and practical testing materials.  When training the process, you need to have reading material each week (or day), and assignments that prove they are assimilating the information.  Do they understand the law?  Can they apply it to example fact patterns to correctly identify and comment on an issue they spot?  Are they identifying the best claim support?  Are they mapping the best parts of the invalidating prior art reference against the claim?  It takes a lot of time and effort to design and train a process at this level of detail, but it is the only thing that works.

Resources performing the process must re-certify since the law and practice changes over time.  Process managers involved in the editing and review of projects, must continue to keep their scores up in order to stay involved in substantive review.  Processes must be updated immediately as the law changes.  CLE is a natural way to show you examples of these concepts since you need to spend the time to meet your MCLE requirements anyway.

Does Legal Process Design Apply Outside Patent Law?   

If you think about it creatively, this applies to almost any area of law, not just patent law.   Law practice is mostly understanding the law, identifying what facts are relevant to an issue, and applying those facts to the law to come to some conclusion.  In almost every area of law, there is a process of some kind that can be formalized.  This formalization does not remove the creativity from your practice, it just makes sure you are flowing through the issues in a meaningful way, and reduces the chances you will forget to consider an important issue.  By watching CLE videos about how we do this in patent law, you will surely spot ways to create efficiency in your legal practice, whatever area of law it might be.