Value = Benefit – Investment
Investment = Time + Energy + Effort + Resources + Opportunity
Waste, then, is any Investment that isn’t offset by at least an equivalent increase in Benefit. Put another way, if the Time, Energy, Effort, Resources, or Opportunity you are putting into a piece of work isn’t adding Benefit, then it is actively reducing Value. (For simplicity’s sake, I’m again conflating Customer Value and Provider Profit. If you want to consider them separately, read this earlier article).
The Seven Wastes of Lean is a great tool set for recognizing specific types of waste. In fact, most people I’ve encountered find it to be the single most useful concept when they start learning about Lean processes. There are hundreds of resources on the web that discuss the seven wastes in various operational contexts,
but none I’ve found that specifically addresses legal work. (Edit: As David Skinner points out, there are some excellent articles on Lean Waste in the legal world including Nora Bergman and Liz Lamar’s eBook, Is Your Firm Behind the 8-Ball and David’s own Guide to Going Lean: The Eight Wastes).
So without further ado, I present the Seven Wastes of Lawyers. I’ve put these in rough order of importance (or at least egregiousness), and I’ll explain each one in some detail below.
(2018 Edit: After four years of working with lawyers on process improvement, I’d change the order around a bit. Today I think the rough order should be (1) Waiting, (2) Transfer, (3) Pre-Processing, (4) Over Processing, (5) Overproduction, (6) Defects, and (7) Movement. I’ll revisit this post and explain why in a future article, but let me just say that Waiting is #1 by a long shot. And I think the reason is this: Lawyers are much more likely to be deadline driven than value driven. If you care about delivering client value, you do the work at the earliest possible opportunity to move the value stream forward. If you are deadline driven, you figure out the last possible moment you can do the work and then build your timeline for work from there. )
I’ve even made a handy Seven Wastes of Lawyers Poster for you to print and put on your wall; I suggest you do so. Then whenever you’re feeling overburdened or lost on a particular piece of work, glance at the poster and ask yourself if what you’re doing falls into one of the seven categories. If the answer is yes, then: (1) stop, (2) ask yourself what you should be doing to add value to your client, and then (3) focus your Investment on that activity instead.
1. Overproduction. In all of my consulting work with in-house lawyers, every single attorney I’ve encountered has offered some variation of this complaint: “I asked outside counsel for X, and they gave me A–Z.” What they don’t always realize is that their internal clients (Sales, Procurement, whoever) are saying exactly the same thing about them. We lawyers are trained issue spotters: Law school teaches it, professors reinforce it, the bar exam requires it… and clients hate it. Issue spotting can easily lead to Overproduction, and Overproduction is Waste.
I know what you’re thinking: “There was this time when I totally saved a client’s bacon by catching that thing that they’d never considered.” That’s awesome, and it makes you feel like a good lawyer. But it isn’t what clients want, at least not when they’ve asked for X. When a client asks you a question, answer the question. If you spot more questions, that’s great: write them down. Then, send your client an email that says: “The answer to your question is Y. In the course of my research, I also came across these additional questions that may impact you. Please let me know if you would like me to answer these questions as well.” Then you’ve done your job, you’ve covered your ass, and you’ve given the client what she wants without her feeling like you did a bunch of extra work to pad your bill.
The other form of Overproduction that clients HATE is having two lawyers work on a problem when one will do. Sometimes it works out when the second lawyer does a bit of issue spotting that the first lawyer missed, but usually the issue spotted isn’t critical to the client. When clients review a bill that says “Attorney 1: Review Plaintiff’s Motion, 3 hours; Attorney 2, Review Plaintiff’s Motion, 2.5 Hours,” then you’d better give a lot of thought to how each lawyer has added Value. If you tell the client that Attorney 2 caught something that Attorney 1 missed, then you’ve just admitted that Attorney 1 did an incomplete job. If you say that Attorney 2 didn’t find anything critical, then you’ve admitted that the additional review wasn’t necessary. Yes you want to minimize risk and avoid Defects, but you’d better be sure the Benefit exceeds the additional Investment.
2. Defects. Defects can take many forms: getting the answer wrong, not providing a complete answer, or providing an answer in the wrong format (especially with legal filings), among others. Defects are in a certain tension with Overproduction and Over Processing—do too much work and you’re guilty of one, do too little and you’re guilty of the other. The key thing to remember with Defects is that you want to avoid re-work. Get yourself to the point where you think you’ve hit all the main points—without going overboard—so that you won’t have to Invest Time and Energy into re-visiting that piece of work to finish the job.
3. Transfer. By Transfer I mean the shuttling of Work around from person to person so that each can add his particular bit to the final product. A certain amount of Transfer is necessary, but you need to watch out for Wasteful Transfers: Sending questions to your client one email at a time, having a colleague review a contract clause before you’re done with the whole agreement, or sending an opposing party a PDF for review when you know they’re going to want a Word file to redline. Before transfering a piece of work for someone else to process, ask yourself whether you’ve done everything you can do without that person’s input. If the answer is no, then finish your work before you push it over to someone else.
4. Over Processing. Over Processing is related to, but distinct from, Overproduction. If Overproduction is answering questions that the client didn’t ask, then Over Processing is working a particular question to death. A good example of Over Processing comes from legal research: If you’ve found two solid cases that are on-point to your issue, then searching for a third, fourth, and so on is going to provide diminishing returns. The key to fighting Over Processing is asking yourself “is this good enough?” We all want to deliver outstanding results—not merely sufficient ones—but sometimes less is more.
5. Waiting. I won’t get much argument that Waiting is wasteful. The key is to recognize when it is happening and figure out how to change it. If you are waiting on sign-off from your client or your boss, ask yourself what’s taking so long? Could you have done something to make the process go faster? You might have presented the options more succinctly. You might have asked a simpler question. Maybe you sent something via email when a phone call or a walk down the hall would be faster. Whatever it is, recognize that most of the burden is on you to reduce your own wait times. Oh, and don’t forget that the people who are waiting on you are experiencing Waste as well.
6. Pre-Processing. Pre-Processing is doing work before it is required. Drafting an answer to a complaint before you’ve fully analyzed your available 12(b)(6) motions is one example. Another is putting together a contract before the deal terms are finalized. Lots of lawyers push back on this one, thinking that it’s more efficient to get things ready so that you can slam the final version together once everything is in place. Lean teaches us time and again that that thinking is flawed. Unless you’re simply not very busy, there is almost always something you can do now that will add Value now, not create hypothetical potential value for some future time. Yes there are exceptions, but they are rarer than you think. As with Defects, the key is to avoid re-work; every time you turn your Time and Attention back to a piece of Work you’ve touched before there is a cost, and those costs add up.
7. Movement. Movement is physical motion. Trial lawyers get this and locate their offices near the courthouse. But most Movement waste comes in smaller forms: a messy desk or a disorganized office. Movement waste is the effort you spend getting your tools and materials assembled so you can start work. If you have to root around for the Stanwyk file, or a highlighter, or your glasses, that’s Waste. Any good production line manager knows that you need to organize each workstation to minimize the worker’s movement for maximum efficiency and reduced error. Your law office should be no different.
That’s it in a nutshell. The thing to remember with all of these activities is that they are unavoidable to some extent. The key is to minimize them, and always ask whether the additional Investment you are making is offset by an equal or greater Benefit to your client.
© 2014 John E. Grant.
The Seven Wastes of Lawyers Poster by John E. Grant is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.