Poor decision making is the root cause of many—if not most—discovery cost overruns, mistakes, disputes and bad outcomes in litigation. Good decision making, on the other hand, is about avoiding the circumstances that lead to bad outcomes. The goal is really very simple: Learn to make good choices every time you face a litigation discovery.
Good judgment during discovery is a learned skill. And good judgment isn’t always directly tied to experience. I have seen new lawyers make good decisions and experienced lawyers make bad decisions.
Bad decisions rarely have a single cause. Normally there is a chain of decisions and problems leading up to a bad decision. Brake the decision link and the problem can probably be avoided.
One way to avoid bad decision making is to know your personal limitations which is based on training and experience. Developing personal limits starts by asking yourself how confident you are with the intended discovery strategy in terms of strengthens and weaknesses and continually assessing your performance.
You should enter a continuous decision making cycle. Take the knowledge and information you already have, combine it with the new information you’re gathering as the litigation project advances, and actively decide how to proceed. The active decision making process can be broken down into three basic steps: Anticipate, Recognize, and Act.
Good decision making begins with anticipation—thinking about what could go wrong before it actually does. If you’ve already considered the problems most likely to arise during a particular discovery project, you’re thinking like a professional, which puts you ahead of the game. The key is to recognize potential problems that can get you into trouble and taking timely action to avoid them.
Anticipate: What could go wrong? It’s a good idea to maintain an active mental “lookout” for potential problems before and during discovery. But also recognize that different phases of discovery call for different degrees of anticipation.
Recognize: Has something gone wrong? Avoid problems by paying attention. The sooner you recognize a problem and start thinking about how to handle it, the better the chance for a positive outcome. Read my article on situational awareness.
Act: Evaluate your options and choose one. Here’s where many lawyers fail. They recognize the potential problem, but don’t do anything to confront it. Why? It means a major change in plans, and it may mean giving your client difficult or unpleasant choice. Regardless, once you’ve recognized a problem there is a choice to be made. That choice depends upon a number of factors—the type and seriousness of the problem, the rate at which the situation is deteriorating, and the available alternatives. Be prepared to act without delay, should the situation warrant it.
The really tough decisions usually don’t “sneak up” on us. They arise because we either fail to recognize a problem soon enough, or fail to take action while there are still viable alternatives.
Evaluate performance on the litigation project afterwards. Spend time going over the project after it is completed. What went right? What went wrong? Were there problems, or potential problems? Could you have anticipated and recognized them sooner? Score yourself. Be as objective as possible, and don’t grade on the curve. If you do this consistently, you’ll soon find yourself catching problems earlier and dealing with them more effectively in the future.