Legal Communication & Rhetoric: JALWD

The Legal Writer’s Checklist Manifesto: Book Review

 

Jennifer Murphy Romig*

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I. Introduction

A surgery patient requires the insertion of central lines into his veins and arteries for the delivery of life-preserving medication, yet these lines can deliver deadly infections if they are not inserted properly and continually monitored for signs of contamination.

An airline pilot and copilot begin the process of warming up the large aircraft in which they will shortly take off. The pilot and copilot may know each other from prior flights, or they may not; either way, they must work together to fly the aircraft.

A pipefitter on a multimillion-dollar construction project discovers a pool of water gathering near the elevator bank on an unfinished floor. The project is about halfway complete.

Each of these stories plays a role in Atul Gawande’s The Checklist Manifesto: How to Get Things Right,1 and each of these stories has something to teach practicing lawyers who wish to enhance their own professional performance. The Checklist Manifesto, a New York Times bestseller, draws from a variety of fields to show how the use of ostensibly simple checklists can help professionals—at all levels of expertise and in every professional discipline—overcome mistakes and “improve their outcomes with no increase in skill.”2

Gawande, a practicing surgeon, professor at Harvard Medical School, and author of Complications: A Surgeon’s Notes on an Imperfect Science, mentions the legal field only in passing.3 Yet lawyers interested in more effective and efficient performance would do well to study and implement the insights of The Checklist Manifesto.4 The analytical and practical challenges of the legal field mean that practicing law can be just as complex as performing surgery, flying sophisticated aircraft, or constructing skyscrapers and that checklists can provide analogous benefits in the context of law practice. Just as a medical team must observe the steps necessary to avoid infecting a patient’s central lines, lawyers must handle legal representation ethically and competently, checking for conflicts before assuming a representation and, in litigation, locating and disclosing adverse authorities to the court as required by the applicable professional conduct rules.5 Just as a team of pilots flying an aircraft must coordinate many individual tasks into the overall goal of safely controlling the airplane even if they are not personally familiar with one another, lawyers working together on large legal projects must coordinate and combine hundreds or even thousands of individual legal tasks with other lawyers who may not work out of the same office, same law firm, or even in the same country.6 Just as a construction team must discover and handle unforeseen problems in the midst of the construction process even when no simple or definite solution applies, lawyers must be able to detect potential problems interfering with their pursuit of a client’s ultimate goal and then generate and choose from potential solutions even when the solution are not clear-cut.7

As Gawande observes, “extreme complexity is the rule for almost everyone.”8 That is not to say that law practice is always complex. But like the other professional disciplines illustrated in The Checklist Manifesto, law practice consists of a range of tasks from the simple (for example, formatting a brief to meet the local court rules) to the complex (for example, shepherding a proposed corporate agreement through negotiations to closing among numerous parties with various and conflicting interests). Gawande’s inquiries into the medical, aviation, and construction fields show how checklists can improve outcomes for any professional endeavor faced with “complex problems,” defined as problems where rote solutions do not apply and outcomes are uncertain.9

Although checklists could be helpful in most—and perhaps all— aspects of lawyering, this review focuses specifically on the lawyer’s role as a legal writer. As a mode of expression for the practice of law, legal writing10 is as complex as the practice it embodies. Legal writing easily meets Gawande’s definition of complexity: situations where “[e]xpertise is valuable but most certainly not sufficient” and the outcome is uncertain.11 Legal writing is also an area where outcomes are perceived to be less than desirable. Critiques of legal writing are not new,12 but current scholarship is measuring the dissatisfaction more concretely than ever. Practicing attorneys asked to comment on the state of writing skills among new lawyers do not hesitate to share their complaints.13 Judges share their dismay over the state of legal writing, as evidenced in the written work submitted in their courts.14 Scholars argue for ways to solve the problem of “lawyers who cannot write effectively.”15 Nationally recognized legal writing consultants describe seemingly perpetual common mistakes and how to avoid them.16

The lessons of The Checklist Manifesto suggest that, just as checklists can help hospitals avoid fostering dangerous central-line infections, so too can checklists help lawyers to avoid poor legal writing. This review briefly sums up Gawande’s central insights and then addresses how legal writers can apply them to enhance their writing processes and products.

II. Central Insights of The Checklist Manifesto

Gawande opens the book with several anecdotes of near-fatal errors in the operating room, anecdotes that lead into a larger discussion of why errors occur. Increasingly, professional errors—across fields and disciplines— stem not from lack of ability or ignorance, but from ineptitude: situations in which “the knowledge exists, yet we fail to apply it correctly.”17 Gawande describes the sometimes fatal consequences of ineptitude so as to prepare the reader to accept his solution, namely the use of checklists, which come in several classic types.

The first and most rudimentary type of checklist is the type that helps with memory recall by serving a “forcing function.”18 Such checklists force their users to follow the “minimum steps necessary in a process.”19 Checklists in this “forcing” category may themselves take one of two formats: a “read–do” format in which the professional reads the checklist while doing each step of the task; or “do–confirm” format, in which the professional does the whole task and then uses a checklist as confirmation that the task meets the checklist’s standards.20 Either type of checklist can help prevent error and enhance performance by providing a “cognitive net” that “catch[es] mental flaws in inherent in all of us—flaws of memory and attention and thoroughness.”21

A second type of checklist that enhances outcomes is not built around specific content to “do” or “confirm,” but rather requires team members to stop and communicate with one another at specified moments, called “pause points.”22 Rather than force an individual to check off a discrete task, this type of checklist forces communication by “detail[ing] who ha[s] to talk to whom, by which date, and about what . . . before the next steps could proceed.”23 Gawande’s illustration here is the model used in complex construction projects, in which the architects, pipefitters, electricians, and everyone else on the building team must communicate at certain specified pause points in the building process—or else the building process stops.24 Such pause points generate valuable ideas from all members of the team and thus tease out potential problems that otherwise would be suppressed.

Although appreciating the conceptual benefits of checklists may be easy, creating an effective checklist is not. To illustrate these challenges, Gawande outlines his own process of generating a “read–do”–style checklist for improving surgical outcomes. Setting out to create this checklist (intended for use by the World Health Organization), he knew it must be realistic for the professionals who would be using it, namely surgical teams working in all types of public-health environments including those with extreme public-health challenges. He also knew that, apart from any cultural and environmental factors, the checklist must be short enough that surgical teams would actually use it in practice.25 Gawande’s first attempt to create a checklist meeting these needs fell short; for example, the nurse responsible for its implementation silently ran through each step rather than stating the steps out loud for the surgical team’s benefit.26 Moreover, the checklist itself was so long and potentially ambiguous that the patient began to shift around on the table as the team struggled together to complete it.27 As a result, Gawande heavily revised the checklist, clarifying who should administer the checklist and when, and reducing the list of checklist items to those that could cause the most severe consequences if missed—the items that literally could be “killers.”28

As the implementation of this checklist demonstrates, a major premise of The Checklist Manifesto is that, across professional disciplines, complex professional tasks are often, if not almost always, undertaken by teams—and that checklists are an important tool in facilitating such teams and in optimizing the results of their work. As Gawande shows through multiple extended anecdotes related to medicine, doctors, anesthetists, and nurses work in teams to perform surgery. Within the construction industry, the idea of one “master builder” responsible for all aspects of a construction project no longer holds; large modern projects are simply too complex for any one person, regardless of experience and expertise, to manage single-handedly.29 And in aviation, many modern aircraft are too complex for a single pilot to fly.30

While Gawande tantalizes professional managers with the pragmatic benefits of checklists, The Checklist Manifesto also contains a more radical approach to the concept of management itself. Gawande asserts that attempts at top-down management of such teams are inherently misguided. In such situations, “[e]fforts to dictate every step from the center will fail,” he writes, because “people need room to act and adapt.”31 Instead, teams should operate around checklists that force certain tasks but also—critically—force decisionmaking to the periphery of the group and create a sense of shared responsibility among all members of that group. For example, nurses given the opportunity to say their name and share concerns at the beginning of a case “were more likely to note problems and offer solutions,” a beneficial byproduct of the checklist described as an “activation phenomenon.”32 Checklists focused on communication among team members foster good decisionmaking by creating a “seemingly contradictory mix of freedom and expectation.”33

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* Instructor of Legal Writing, Research and Advocacy, Emory University School of Law. The author gratefully acknowledges invaluable feedback on earlier drafts of this review from Robert Ahdieh and Polly Price of Emory University School of Law; Ruth Anne Robbins of Rutgers School of Law–Camden; and Suzanne Rowe of the University of Oregon School of Law.

1 Atul Gawande, The Checklist Manifesto: How to Get Things Right (Metro. Bks. 2009).

2 Id.

3 Atul Gawande, Complications: A Surgeon’s Notes on an Imperfect Science 11 (Picador 2003) (noting “the 36 percent increase between 2004 and 2007 in lawsuits against attorneys for legal mistakes” as well as the fact that two-thirds of death-penalty cases are overturned on appeal).

4 Cf. Anthony Kearns, Risky Business: What Law Firms Can Learn from Airlines and Hospitals, available at http://amlawdaily. typepad.com/amlawdaily/2010/07/kearnscolumn.html (July 6, 2010) (describing how lawyers should model riskmanagement techniques from the aviation and medical industries, such as self-reporting and analyzing errors in a peer group and implementing organizational structures that encourage subordinates to challenge poor decisionmaking by senior practitioners).

5 Model R. Prof. Conduct 1.7 (governing conflicts with current clients); Model R. Prof. Conduct 3.3(a)(2) (requiring disclosure of directly adverse authority in the governing jurisdiction). The Checklist Manifesto’s relevance to multi-step lawyering tasks has previously been recognized. See John Gillies, The Checklist Manifesto and the Smarter Lawyer (“One could envisage, in our context, a general checklist relating to firm opinions; one each for addressing issues where our client is a corporation, a limited partnership, or a trust; a checklist where we are acting as agent; etc.”), available at http://www.slaw.ca/ 2010/02/24/the-checklist-manifesto-and-the-smarter-lawyer/ (Feb. 24, 2010).

6 See e.g. Brian Baxter, Freshfields, Dewey Advice on BP Sale of Pakistani Assets, available on www.amlaw.com (Dec. 13, 2010) (describing the $775 million sale of Pakistan-based assets by London-based British Petroleum (BP) to a Hong Kong–based buyer, guided by lawyers from the international Freshfields firm as well as by Chicago-based in-house counsel from BP, and by energy lawyers, based in Houston, from the Dewey firm).

7 William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law 117 (Jossey-Bass 2007) (hereinafter The Carnegie Report).

8 Gawande, supra n. 1, at 21.

9 Id. at 49.

10 This review uses the term “legal writing” to refer to prose-style writing in paragraphs, such as letters, e-mails, memoranda, briefs, and articles, although many of Gawande’s points apply equally to the process of drafting contracts, pleadings, and discovery requests.

11 Gawande, supra n. 1, at 49.

12 See e.g. Terence Collins & Darryl Hattenhaur, Law and Language: A Selected, Annotated Bibliography on Legal Writing, 33 J. Legal Educ. 141, 142 (1983) (observing that, in literature on legal writing from 1969 to 1980, “many authors note among prelaw students, law students, and working attorneys the decline in writing skills noted generally over the last decade”).

13 Susan Hanley Kosse & David ButleRitchie, How Judges, Practitioner, and Legal Writing Teachers Assess the Writing Skills of New Law Graduates: A Comparative Study, 53 J. Legal. Educ. 80, 84–85 (2003) (noting high response rate from survey recipients and that “[n]early 94 percent, overall, of the respondents found briefs and memoranda marred by basic writing problems”); Erika Abner & Shelly Kierstead, A Preliminary Exploration of the Elements of Expert Performance in Legal Writing, 16 Leg. Writing 363, 380–83 (2010) (surveying supervising partners and recording comments such as “[a]ppalling grammar”; “[t]hey don‘t think about the order of sequencing of, of the structure of the thoughts and how that one fits into the other”; “[t]hey just say well, here’s a case, here’s another one, here’s twenty cases”; “[t]here’s no rational ordering principles [in how new graduates use cases]”); see also Amy Vorenberg & Margaret Sova McCabe, Practice Writing: Responding to the Needs of the Bench and Bar in First-Year Writing Programs, 2 Phoenix L. Rev. 1, 9 (2010) (describing survey of practitioners and judges in which these respondents noted problems with legal writers’ “conciseness, organization, and analytical skills”).

14 Kosse & ButleRitchie, supra n. 13, at 85; Kristin K. Robbins, The Inside Scoop: What Federal Judges Really Think about the Way Lawyers Write, 8 Leg. Writing 257, 264 (2002); see also Ruggero Aldisert, Winning on Appeal: Better Briefs and Oral Arguments 25–27 (2d. ed. Nat’l Inst. Trial Advocacy 2003) (listing thirty-one items as “criticisms generally expressed by judges against lawyers’ briefs today”); comments by Hon. Edith Hollan Jones at www.lawprose.com (describing “grotesque” usage errors in current usage).

15 Wayne Schiess, Legal Writing Is Not What It Should Be, 37 S.U. L. Rev. 1 (2009) (“I believe most lawyers would agree with me that most legal writing is mediocre at best . . . .”); Kathleen Elliott Vinson, Improving Legal Writing: A Life-long Learning Process and Continuing Professional Challenge, 21 Touro L. Rev. 1, 8 (2005); accord Tom Goldstein & Jethro Lieberman, The Lawyer’s Guide to Writing Well (2d ed., U. Cal. Press 2002) (“Nearly fifteen years after we began the first edition of this book [published in 1988], lawyers still write poorly.”).

16 E.g. Stephen V. Armstrong & Timothy P. Terrell, Why Is It So Hard to Front-load?, 18 Persps. 30 (2009) (describing new law-firm associates’ failure to make their point up front as their most frequent writing problem with the most “damaging effects”); Ross Guberman, The Three Biggest Mistakes I See, available at www.legalwritingpro.com, select More Articles, scroll down to Legal Writing (May 12, 2010).

17 Gawande, supra n. 1, at 8.

18 Id. at 50.

19 Id. at 36.

20 Id. at 123.

21 Id. at 48.

22 Id. at 111.

23 Id. at 66.

24 Id.

25 Id. at 90.

26 Id.

27 Id.

28 Id. at 123.

29 Id. at 67.

30 Id. at 33 (detailing the unsuccessful test flight in 1935 of Boeing’s Model 299, which was deemed “too much airplane for one man to fly” but which was later mass produced and successfully flown throughout World War II through the use of pilot checklists).

31 Id. at 79.

32 Id. at 108.

33 Id.