Keeping the law in order

In global organisations, work product repositories are used to help employees deliver better results to the customer faster. Chris Boyd and Christine Hodson explain the business case for a brief bank at Wilson Sonsini Goodrich & Rosati and provide insights into how the system is maintained, marketed, measured and improved to the organisation’s advantage.

Wilson Sonsini Goodrich & Rosati (WSGR) provides legal services to technology and growth enterprises. The firm is headquartered in Palo Alto in California and has nearly 600 attorneys in eight cities across the US. The firm’s second-largest practice area is litigation: the firm represents clients in securities, intellectual property, employment and general commercial disputes. WSGR litigators provide value to clients by winning cases, negotiating favourable settlements and advising clients with the aim to avoid litigation altogether.

The high value of briefs

Winning a case requires many areas of expertise, but the single most important area of tangible attorney work product is the brief – a written argument that supports a motion or other case plea. In a securities class action or employment lawsuit, a well-written brief can persuade a judge to dismiss a case against a client defendant within months, rather than let a case continue for years. A brief can even win a motion and persuade plaintiffs to settle for a much lower sum. In an intellectual-property case, a well-written brief can be critical in winning key preliminary or summary judgment motions, thereby avoiding the significant time and expense of later case phases, including the trial itself.

Because the pay off from winning a motion can be high, a case team might collectively spend more than 100 hours researching and drafting the supporting brief. Even less critical briefs can still require dozens of hours of work. At blended billing rates of several hundred dollars per hour, each brief represents a significant client investment.

Preparing a brief: the KM challenge

Briefs are high-value and high-cost work products. WSGR employs KM techniques to help attorneys draft better briefs faster by intelligently re-using key portions of past briefs and learning from colleagues who have faced similar issues. As with any KM resource, a brief-writing tool must be closely tied to the underlying business process to be successful. Preparing a brief typically requires:

Defining the questions that the court will decide;
Researching the law that the court will apply to the issues;
Framing the facts favourably for the client;
Making the strongest possible legal argument on behalf of the client;
Conforming to the court’s requirements in terms of format.

Finding good examples of past briefs on similar topics can help an attorney meet these criteria more efficiently and effectively. Until recently, however, finding such examples could prove extremely difficult. WSGR files hundreds of briefs each year and stores them all in a document-management system with millions of other documents. While searching the document-management system is a big improvement on the old process of poring over hard copies, sorting through the electronic haystack for the two or three most relevant briefs can still be time-consuming.

The brief bank

To address the need for quick access to relevant briefs, WSGR built a brief bank to enable attorneys to search for past briefs by type of case, type of pleading, court, judge and many other parameters. This idea is not novel, as many other firms have built brief banks; the hard part is making the brief bank a successful, well-used, integral practice tool. Doing so requires several steps: regularly collecting and adding briefs to provide a critical mass of recent and re-usable material, encouraging use of the brief bank, and documenting the results. To execute these steps, we implemented a strategy to collect all WSGR-authored briefs for the brief bank and actively market the brief bank to attorneys, paralegals and secretaries.

To assess how well the brief bank is serving attorneys, we measure the number of briefs in the brief bank and the rate at which the collection is growing; brief bank usage by practice area, level and location; and results (via anecdotes). While we have not executed all steps with equal success, overall the brief bank has become a key tool in the brief-writing process and has helped increase the quality of our briefs and reduce the time required to write them.

Collecting briefs

Collecting all of the firm’s briefs into a single database is not a simple process.[1] At any given time, the firm has dozens of active case teams, each of which is filing briefs on its own schedule. Because our firm has no one place through which all briefs flow on their way to the courthouse, we have to collect briefs directly from each case team. Initially, we asked the attorneys on each team to submit their briefs, but had only limited success, as attorneys are notoriously busy and could not be relied upon to be consistent when it came to sending briefs to us.

We were not collecting nearly enough briefs via this method, so in March 2003 we decided to improve the process by having the litigation-practice leader tell everyone to file each brief with us at the same time they filed it with the court, and having the secretaries responsible for file maintenance send us the briefs, rather than the attorneys. The results were immediate and gratifying: March became a record month for the number of briefs added to the brief bank without any major change in the pace of the litigation business itself. While the collection rate subsided somewhat after the March surge, by late 2003 the monthly number of new briefs was still nearly double what it was before the process change.

However, we still needed to check whether we were getting all the briefs – a very laborious task that involved periodically auditing court filing forms and pestering file keepers to send us copies of missing briefs. All of this took time that could be better spent elsewhere, so in March 2004 we decided to improve the process again and switch responsibility for brief contribution for any particular case from the secretary who kept the files to the secretary who distributed the final brief to the case team following the court filing. Because that secretary was already in ‘distribution mode’, adding the KM team as another recipient was relatively easy, and once added, KM stayed on the distribution list for the remainder of the case. As a result, while the overall number of briefs submitted each month hasn’t changed much, briefs flow to KM much more smoothly and the KM team spend considerably less time collecting them.

Marketing the brief bank

Making sure we’re collecting all the briefs is just the first step; the next is to ensure that attorneys both know how to use the brief bank and that they are actually using it. To market it, we train all new litigators and send a bi-weekly brief-bank bulletin highlighting all recently added briefs and stories about WSGR litigation successes.

To measure usage, we track the number of users who searched the brief bank and which briefs were opened. Since November 2002, when we began this tracking, the average number of users has increased nearly five-fold. The spikes in the chart show the impact of the brief-bank bulletin. Each spike is a week in which users received the bulletin and were thereby prompted to check out the brief bank.

The statistics also show the breadth of usage in addition to the overall quantity. Over the past six months, at least 65 per cent of the briefs were viewed at least once, and on average each of those briefs was viewed three times. The fact that most briefs in the brief bank are used at least once, but not much more than that, shows the value of a broad collection strategy, rather than a targeted subset of all briefs (see box-out text for more information).

Measuring results

We primarily measure the results of brief-bank usage through attorney anecdotes. These indicate two types of value: explicit knowledge re-use (for example, an associate who is faced with an impending deadline to submit a high-quality draft of a motion to dismiss who is able to quickly gather applicable precedents) and tacit knowledge exchange (for instance, that same associate calling the authors of those briefs to find colleagues who have addressed a specific legal issue and talking it through with them). Examples of each are shown in these anecdotes:

“I [junior securities litigation associate] was working on a motion to dismiss to be filed in the Northern District of California. I found exactly what I needed for a safe harbour section in the brief bank. I use the brief bank frequently when drafting pleadings and find the briefs to be a tremendous time-saving and quality-improving asset in terms of their use as a starting point for research and drafting.”

“I [junior securities litigation associate] was recently drafting a motion to stay or dismiss to file in Santa Clara County Superior Court. Our client was sued in state court on claims that are nearly exact duplicates of those made by the same parties against our client in the federal district court. We checked the brief bank and located several sample motions. Several of these provided an excellent starting point because they illustrated how a brief incorporating the key cases might be structured. The brief bank reassured me that I had found all of the relevant law, and saved me from starting from scratch in its application.”

“In a patent case we are litigating, we anticipate that the other side will file a motion to stay our litigation pending the outcome of a re-examination by the [US Patent & Trademark Office] of the patent-in-suit. To prepare for this motion, I [a mid-level IP litigation associate] searched the brief bank for examples of oppositions to such motions. Although I did not find any, I did find a motion to stay and contacted [partner] and [senior associate] in the Austin office [the authors of the motion] to get a copy of the opposition they received. They were both very helpful and sent me not only the opposition, but also the reply and the judge’s order on the issue, all of which will help us prepare effectively for our opponents’ anticipated motion to stay. The brief bank is a great tool.”

Improving the brief bank

The brief bank has proved to be very useful, but user feedback has made it apparent that we need to improve it in several ways:

Include more case metadata. While the brief bank contains much useful information about each brief’s case, which enables attorneys to perform structured searches, it lacks some key metadata, including causes of action (which enable attorneys to find briefs that make specific arguments, not just ones filed in certain types of cases and courts), and case hours and financials (which enable partners to better set client expectations about litigation costs). Adding this data would improve efficiency and client relations;
Collect all briefs. While the process changes described above have helped increase the collection rate, we still are not capturing all the briefs. The main problem, common to most explicit work-product databases, is that submitting a brief to KM is an extra, out-of-the-workstream task that even the best intentioned secretary will occasionally neglect. Automating the submission process would increase the collection rate;
Include all case pleadings, not just briefs. While briefs are the most important type of litigation work product, attorneys draft many other types during the course of a case: discovery requests and responses, declarations, protective orders, and so on. For each case, we need to keep a ‘pleadings index’ of all such work products and provide the attorneys with browse-and-search access to the practice’s collective-pleadings indices. This would increase both effectiveness and efficiency.

To incorporate these improvements, we developed a ‘pleadings index database’ with many of these features and piloted it in our employment-litigation group. Feedback from attorneys, paralegals and secretaries has been good, so we will expand this database to the rest of the litigation practice, and ultimately it will enhance the brief bank.

Overall, our experience with the brief bank has shown us that managing, marketing, measuring and improving a work-product repository is a difficult and complex task, requiring focused attention from a dedicated professional. Our experience has also shown us, however, that such a repository – if it contains a critical mass of high-value, easily accessible material – can be a valuable tool for connecting attorneys with re-usable assets and with each other. n

Acknowledgement
Thanks to WSGR litigation partners, Doug Clark and Elizabeth Saunders for their comments on this article.

Note
1. We choose not to post some briefs in the brief bank, most notably those filed under seal because they contain information that has been designated as confidential under the terms of the protective order for the case. For some of these, we can post the public version of the brief that was filed with the court, or redact the confidential portions out. Sometimes however, we simply cannot redact a brief in a manner that retains its usefulness for future cases, and we choose not to post those briefs.

Box out

Cultural challenges encountered while managing the brief bank

Many articles and presentations about work-product repositories have identified two potential cultural obstacles: hoarding and maintaining the right balance between quality and quantity. We have encountered little of the former with the brief bank. Because each brief is filed with the court, and thus already given away, there is nothing to be gained by hoarding it. As described in the main body of this article, the primary challenge to collecting briefs has been logistics rather than hoarding.

However, the second potential obstacle – maintaining the right balance between quantity and quality – has been a more serious issue. Generally, the challenge faced by managers of work-product repositories seems to be how tightly to set the quality filter for contributions. Setting it too tightly can require lots of expert time to vet contributions and can prevent the repository from accumulating a critical mass of quality material. Setting the filter too loosely (or eliminating it) however, can swamp the repository with low-value material, so that finding anything useful takes too much time.

In the brief-bank context, we face a dilemma when it comes to which briefs should be posted: all briefs or just a subset? Initially, our litigation practice leader decided that we should post only a subset. However, we found that this standard caused problems in practice because we needed high-priced human judgment (billable attorneys’ time) to decide which briefs should be posted. Some of the problems are listed below:

Only winning briefs qualify. However, an excellent brief that loses because of bad facts still can be a fine exemplar. Also, waiting to find out if a motion wins or loses can be problematic, as judges sometimes take months before issuing orders. During this time another trial team may be writing a similar motion and could benefit from seeing recent examples;
Only a brief that deals with a novel legal issue not previously briefed qualifies. However, this requires a highly subjective and time-consuming determination of what is ‘novel’;
A brief should qualify only if it is authored by an attorney with good writing skills. However, there political difficulties can arise when identifying the attorneys that have these skills. In addition, attorneys can have very different writing styles so choosing the best candidate is extremely subjective.

Following a policy of posting only a subset of all filed briefs seriously limited the number of briefs in the brief bank and undermined our goal of enabling attorneys to quickly find examples of past briefs to draft new ones more efficiently.

For several reasons, we therefore decided to post all briefs. First, doing so would not swamp us with low-value material because each brief already meets a high quality standard, as it is filed with a court, on behalf of a client and under at least one partner’s name. Next, some attorneys were simply looking for particular types of briefs to see what they looked like and the currency and accuracy of their format, rather than the relative content of the briefs. Finally, we could still enable those attorneys only looking for particular subsets of briefs to do so:

Attorneys looking for winning briefs can now look at a brief’s associated order (if issued) to see if a brief won or lost and to review the judge’s reasoning for granting or denying the motion;
Attorneys looking for briefs addressing specific novel issues can do full-text searches for briefs on those topics;
Attorneys looking for briefs by certain authors (such as the partners for whom they are drafting the brief) can do structured searches by author.

Overall, this policy seems to have resulted in the optimum balance between quality content and quantity.

Chris Boyd is director of professional development and knowledge management at Wilson Sonsini Goodrich & Rosati. He can be contacted at cboyd@wsgr.com

Christine Hodson is litigation project manager for KM at Wilson Sonsini Goodrich & Rosati. He can be contacted at chodson@wsgr.com