In my posting of 7 Aug 2003 (How Would You Rather Fly? How Do You Like Your ICU Stay? Checklists or Not?) I discussed a Wall Street Journal article that reported how the use of checklists reduced the number of patient-days and mortality in intensive care units. Last Friday (9/26/03), the Wall Street Journal again has a report about medicine with lessons for lawyers.

Too Many Patients Never Reap the Benefits of Great Research reports that many lives could be improved or even saved if doctors merely followed documented and well-established practices. The failure of doctors to follow best practices as established by national bodies is not “just at the margins.” Why are patients leading lower quality lives and even dying prematurely? “To put it bluntly, many of these independent-minded souls [doctors] don’t like being told that science knows best, and that the way they’ve ‘always’ done things is second-rate” reports the article. Doctors resist best practices because they say clinical trial results don’t apply to their patients or because they take a “show me” attitude, waiting to see the impact of broad adherence to guidelines.

So what does this have to do with lawyers and why call to arms the general counsels? In many respects, lawyers behave like doctors. Lawyers practice law the way they learned however many years ago and think that that’s the best way. Granted in law, no one is scientifically studying the best way to practice. But large firms have many lawyers and at least have the potential to identify best practices within their own firms. (I have previously written that law firms should adopt best practices in Consistency in Service Delivery, July 29, 2003 and When Clients Come Knocking, July 24, 2003).

Two examples of what may be sub-optimal practice illustrate the point. First, litigators often deal with massive paper and digital document discovery challenges. It seem demonstrable to me that building databases early, using full-text searching to cull collections, and reviewing documents on-screen is more efficient than never building a database, dealing with all documents rather than culling, and printing all digital documents and reviewing them as paper. (Perhaps I am wrong, but then shouldn’t all lawyers be doing it the other way? Of course, the same approach is not right in all cases but I have seen no evidence that the choices lawyers make in individual cases are based on a realistic and conscious assessment of cost and efficiency.)

Second, transaction lawyers deal with complex and inter-related documents. Maintaining consistency across documents (e.g., defined terms) is hard. Quickly reviewing a set of documents is daunting. Tools are available (for example, Deal Proof by Expertease) to facilitate document review and to help ensure consistency. Some lawyers I know speak highly of such tools. I would be surprised that the many lawyers who do not use them have actually even made a conscious decision by evaluating such products or even speaking to lawyers who have used them.

Resistance to the equivalent of “evidence based medicine” among lawyers is likely to be at least as high as it is among doctors. I recently proposed ideas along these lines at a conference. A senior, widely respected lawyer took the floor and pooh-poohed the idea saying something to the effect that “what I do is art, not science, and there is nothing I do that could possibly be studied, systematized, made more efficient, or improved.” If he were your doctor, would you continue seeing him?

The Wall Street Journal article points out that there are external forces at work to change how doctors practice. Employers pay for most health care and are now realizing that bad care hurts their bottom line. I am not sure that general counsels of corporate America have come to the same realization. It is not obvious to me that even those law departments that analyze outside counsel bills – whether manually or using e-billing services – are able to detect “good” versus “bad” law practice. It seems to me that there is “low hanging” cost-savings fruit for those GC willing to examine not just bills, but how their outside counsel practice and apply pressures to identify and adopt demonstrated best practices.

And if GCs do not see the light, there are external parties – CFOs in particular – who may someday step in.