Should Complex Commercial Disputes be Managed by Litigation Schedules?

Smart contractors plan their work and then work their plan.  That’s why most contractors use some form of CPM schedule to manage their projects.  After all, schedules are the easiest way to communicate “when, where, how, why, and by whom” work is to be performed.  Yet, few attorneys use litigation schedules to manage their clients’ cases.  Even fewer clients request litigation schedules from their attorneys.  Why is it contractors use schedules to manage their large complex projects, but do not require their attorneys to use schedules to manage their large complex cases?

One reason is that attorneys often claim it is impossible to schedule litigation. Attorneys say there are too many “unknowns” to manage litigation using a schedule. Courts are clogged.  Judges and arbitrators are unpredictable.  Opposing counsel is unreasonable.   Parties are irrational.  Electronic discovery is unwieldy.  Witnesses are uncooperative.  There’s a never-ending parade of “terribles” upon which attorneys rely.  But, even if such “unknowns” exist, why can't litigation be managed using a schedule?

The root cause of the problem is the way attorneys view risk.  Contractors view risk as an opportunity. Attorneys view risk as a misfortune.  Attorneys see scheduling “unknowns” as a "terribly" risky adventure.  Contractors see scheduling “unknowns” as a calculated gamble.  As an old project manager once told me, contractors are from Mars and attorneys are from Venus.

Few attorneys appreciate that Gantt Charts – a predecessor to CPM scheduling – were used to manage the Manhattan Project.  A project filled with unthinkable “unknowns.”  The most terrible “unknown” being whether the atom bomb produced from e=mc² would generate a fission explosion ending all life as we know it.  Yet, such “terribles” did not prevent General Groves from insisting upon a project schedule.  Nor did such “terribles” prevent the project managers supporting Robert Oppenheimer and friends from providing one.  Contractors schedule “unknowns” every day by making predictions and assumptions.  Why can't attorneys do the same?

There is no reason litigation cannot be managed just like any other complex project. Experienced attorneys can foresee and identify normal litigation activities.  Resources, relationships, durations and start dates can be assigned to each foreseeable activity. Naturally, predictions and assumptions must be made about “unknowns” just like contractors do on a daily basis.  Along the way, litigation activities will need to be adjusted to accommodate the “unknowns” just like with any other schedule.  All this can be achieved using Microsoft Project - a standard over the counter software used by many contractors to manage their projects.  So, what's the excuse?

Everyone is concerned about the rising costs of litigation and, if properly prepared, litigation schedules will help clients control these costs.  A good schedule contains the same activities identified in the litigation budget.  Work within each activity is assigned to attorneys, experts, the client, or others.  A division of responsibilities could be especially important given the growing proliferation of "nelectronically stored information" or ESI.  Experience shows contractors who understand the work to be done will inevitably elect to self-perform certain activities to save costs.  Schedules put all stakeholders and resources to their highest and best use.  [See, "Will the Proliferation of ESI be the Death of Construction Litigation?", posted 4/19/23].

Better yet, schedules and budgets allow clients to see exactly where their money is being spent and why.  Under a good system, all time is recorded and invoiced to the activities identified in the schedule and budget.  Both are updated monthly. Information is available for stakeholders to see “when, where, how, why, and by whom work is being performed and costs are incurred.  Surprises about cost and schedule are minimized, if not eliminated.

Best of all, litigation schedules help put decision making about costs back into the hands of the client. Clients can see firsthand whether their plan is working and whether their attorneys are working their plan.  Litigation activities can be accelerated, delayed, added, suspended, rescheduled, reassigned, or eliminated as necessary to satisfy the client’s budget.  Of course, there will always be some activities that are set in stone and cannot be altered by the client or their attorneys.  But with a schedule and budget in hand, clients can make informed business decisions about how their time and money is best spent during litigation.

So, try managing your next case using a litigation schedule.  You might like it.  And if someone claims it can't be done, tell them about the Manhattan Project.