Last Monday (November 10, 2003), the Wall Street Journal, in Heart Studies Cite Treatment Gaps, reported that “[l]ess than one-third of Americans hospitalized for heart failure are discharged with four standard therapies that could help keep them out of the hospital and prolong their lives.” A separate report found that “implementing a more-systematic approach to care – such as establishing a set of standing orders for heart-attack patients – can significantly improve a hospital’s performance in providing basic medicine.” A doctor in this second study said that having reminders and other aids that help doctors and nurses follow protocols is better then relying on habit or memory.

I have posted several items comparing medicine and law arguing that lawyers should emulate the movement in medicine to empirical studies of what works and adoption of best practices. I am fortunate in that I am not a big consumer of medical services. Were I to need more than occasional and very routine medical care, however, I would ask my medical providers if they (1) were current on the latest medical research, (2) followed a set of current and widely accepted treatment guidelines, and (3) had tangible manifestations of those guidelines such as checklists to ensure the guidelines were being followed.

So, how is this connected to law practice? The November 2003 issue of Corporate Legal Times reports in Budget Battles that law departments face increasing cost pressures. If I were a general counsel, I would want to make sure that my outside counsel had established best practice guidelines and followed them. To me, this would be as important as analyzing bills and getting discounts. First, it is still difficult to assess how much legal representation should cost. So I would want to know that my outside firms were practicing systematically. And second, I would assume that any firm that had systematically studied how it practices and rolled out those findings to its lawyers was, by definition, more effective and efficient than firms without similar programs.

The medical market has many third parties that study health care practices. Perhaps the time has come for the legal market to emulate this. A general counsel who spends a lot on outside counsel could consider paying an outside organization to audit how their firms perform. The cost of such an effort and the value of the results would be even better if multiple GC combined forces to buy such services. Such audits would focus on how the firms practice, not on the bills themselves. Without the intervention of third parties who employ disinterested and objective measures, it is not clear the lawyers will be subject to the same pressures as doctors.

Of course, any law firm that adopted an “evidence based” approach to best practices that withstands the scrutiny of objective audits would rely heavily on various strategic legal technologies.