In The Checklist Manifesto, Dr. Atul Gawande examines how the use of checklists can significantly improve workflows and outcomes in the work environment. He focuses primarily on the aviation and construction industries, and analyzes where and how checklists are used. He speaks as well about his experience in a WHO-sponsored initiative bringing checklists to surgical operating theatres around the world. There are, I believe, possible applications of his ideas within a law firm.
[Dr. Gawande is a general and endocrine surgeon at Brigham and Women’s Hospital in Boston. He is an associate professor at Harvard Medical School and leads the World Health Organization’s Safe Surgery Saves Lives program. He is also the author of two other books, Better: A Surgeon’s Notes on Performance and Complications: A Surgeon’s Notes on an Imperfect Science“, and is a staff writer for The New Yorker. The genesis for his book was an article on checklists in The New Yorker in December 2007.
Dr. Gawande examines in some detail the genesis of checklists in the aviation industry, a major result of which is the incredible safety record that the industry enjoys, despite the obvious complexity involved in any flight.
He notes that checklists are generally of two kinds, PAUSE AND CHECK and READ AND DO. An example of the first would be the checklists that an airplane pilot goes through before starting the engines. An example of the second would be the type that one consults when one encounters an unexpected event.
In a legal context, READ AND DO checklists would be used at the outset or at some point during a matter (for example, when starting to draft an agreement or pleadings), while a PAUSE AND CHECK list would be used before some important milestone (for example, immediately before the beginning of a trial or a closing).
Near the end of the book, the author analyzes the “miracle on the Hudson” landing of a jet liner on the Hudson River a year ago. When both engines failed at the same time, the pilot went first to the checklist relating to catastrophic engine failure. Although painted in the press as a hero who single-handedly engineered the safe landing, the pilot continued to say that this “miracle” was the result not of individual effort but rather of teamwork.
One key aspect of the success of the checklist is its length and simplicity. A good checklist, the author says, has between five and nine points and is sufficiently concise that it fits on one page. (The binder of aviation checklists is about two inches thick.)
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.
Equally important is the need to continually test the checklists in “real life” to ensure that they work effectively. Dr. Gawande notes that his WHO committee prepared a first draft of a surgical checklist, which he thought was very effective. But the first time he used it, the others in the OR found it raised almost as many questions as there were points on the list. It had to go through many iterations to get to a state that everyone judged acceptable and – most importantly – is continually updated.
He notes that the aviation industry has been diligent in studying the causes of unexpected incidents (for example, after crashes or “near misses”), determining the cause(s), and then taking all appropriate steps (primarily, updating the relevant checklists) to address the issue if it were to arise again.
(One may be tempted, when reading of the aviation’s industry’s efforts, to reflect on how often – or, more to the point, how infrequently – lawyers engage any sort of after action review of the positive lessons learned, let alone any analysis of mistakes made and how we could learn from them.)
The author spends some time looking at checklists used in building a 33-storey addition to his hospital and specifically how the builders, who are managing 16 different trades, each with their own specialities, have one set of checklists for what “should” happen, but also another set that specifically provide for unexpected events. (Similarly, airlines have checklists for things like catastrophic engine failure.)
The key point here is that building industry has built into its preparedness an expectation that things will not go exactly as planned. In my experience, however, most legal matters are conducted as if every expected them to run without problem, and when the unexpected occurs, it is truly unexpected. Both the aviation and building industries, however, have examined their past experience and developed ways to deal with the unexpected. I do not believe that the law is so different that the same could not be done for the practice of law.
Dr Gawande notes that, although many practitioners are resistant to the use of checklists, the ultimate effect is to create well-functioning teams and that, rather than stifling creativity, the checklists actually foster it. He devotes a good part of analysis to how the use of checklists can actually empower all members of a team and enable them to make decisions that push their initiatives forward. He cites the example of Wal-Mart, whose employees on the ground in New Orleans in the aftermath of Katrina were able to carry out effective measures to help the residents because they had been authorized by their head office to do whatever made the most sense to help. This contrasted bluntly with the paralysis of the traditional top down, command-and-control approach taken by FEMA.
In an interview with The Times Online, Dr Gawande makes a very telling comment, namely that “this whole thing starts with the recognition that we fail.” That recognition is probably as hard for lawyers as it is for doctors. But if patients can be reassured by the fact that their health professionals are using checklists to ensure that nothing important is missed, then surely lawyers’ clients can be similarly reassured if we do the same.
The most significant comment in the book, in my opinion, is the following:
All learned occupations have a definition of professionalism, a code of conduct. It is where they spell out their ideals and duties… [But] they all have at least three common elements.
First is an expectation of selflessness: that we who accept responsibility for others – whether we are doctors, lawyers, [etc.] … – will place the needs and concerns of those who depend on us above our own. Second is an expectation of skill: that we will aim for excellence in our knowledge and expertise. Third is an expectation of trustworthiness: that we will be responsible in our personal behaviour towards our charges.
Aviators, however, add a fourth expectation, discipline: discipline in following prudent procedures and in functioning with others. This is a concept almost entirely outside the lexicons of most professions, including my own. In medicine, we hold up “autonomy” as a professional lodestar, a principle that stands in direct opposition to discipline…
Discipline is hard … [It] is something that we have to work at. That’s perhaps why aviation has required institutions to make discipline a norm … [pp. 182-183]
The task of implementing effective checklists across a law firm will be an immense one. The good news, though, is that we are likely to encounter the very same resistance and objections that Dr Gawande and his colleagues have met as they have tried to disseminate this practice within the medical profession. They were, however, able to point to indicators such as declining infection and mortality rates following the introduction of these checklists (after correcting for other possible factors). Those indicators speak very powerfully to the profession dedicated to doing no harm. It will, however, be much harder to arrive as similar indicators to persuade the members of the legal profession that they can best serve their clients interests in adopting such an approach.