Episode 35. Parkinson's Law

This week, Bob discusses Parkinson’s Law, the notion that work expands to fill the time available to complete it. He gives advice on how to avoid this phenomenon and get work done before your deadlines. 

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Transcript

Well, let's talk about law. In particular, let's talk about Parkinson's Law.

In 1955, the British naval historian named Cyril Northcoat Parkinson wrote an essay

published in The Economist called Parkinson's Law. He advanced the notion that work

expands so as to fill the time available for its completion. A phenomenon I expect

everyone has heard of and experienced. Parkinson's law manifests in one of two ways.

You either take longer than necessary to complete a task or you procrastinate and

complete the task right before the due date. I remember my early days of law

practice when I would spend the night before it was due, drafting a pleading, and

on the date it was due, it was all hands on deck at the office as we barely made

the deadline. Today I watch as others, even with a federal e -filing deadline at

midnight, scramble to complete a filing they have known about for weeks,

sometimes months.

It's not uncommon to receive an email from opposing counsel on the day their

discovery responses are due, asking for a two -week extension, and when the two weeks

elapse, either get another extension request or a response that is full of objections

than that could have been provided before the original extension was given. To me,

these are manifestations of Parkinson's law and, in my humble opinion, are usually

less about taking longer than necessary to complete a task than in procrastinating

doing it. And what's our excuse for procrastinating? It's that we have other

deadlines that have interfered with our ability to get started earlier. There's no

question the practice of law is deadline -driven. Insurance is deadline -driven in some

respects too. Claims handling regulations impose deadlines on insurers.

Reporting deadlines impose deadlines on insurers.

Deadlines pop up everywhere.

Some deadlines are soft, meaning you can get an extension or even miss them without

penalty. And some deadlines, such as a statute of limitations, are hard,

meaning there is a penalty for missing them. Here I want to give you a mathematical

equation I just thought up. D times P equals S,

where D equals deadlines, P equals procrastination,

and S equals stress. So deadlines multiplied by procrastination equals stress.

There's little we lawyers can do about having deadlines, but we can do a lot about

procrastination. One of those things that has cropped up over the years in the

practice of law is the approach to practicing called 100 Days Before Trial.

The Santa Clara California Superior Court has an online page entitled Getting Ready

for Trial, The Last 100 Days. You can find it under the self -help tab for landlord

tenant disputes. Steven Peskind, an Illinois attorney practicing family law,

wrote a book called "100 Days Before Trial, a Family Lawyer's Guide to Preparation

and Strategy." It's published by the American Bar Association. You can get it on

Amazon. You can also go online and find law firms that have posted their last 100

days checklist.

Now I have to say I'm a fan of checklists. I think they're great at helping us

remember essentials, but I fear in the in this context they're just another source

of deadlines and of course they're soft deadlines, meaning we can miss them without

penalty. And so we set them and we miss them.

We set them and we miss them. We reset them and we miss them and then we're up

against the hard deadlines and there comes the stress.

But let's assume that we're disciplined and accountable and don't miss those

deadlines.

Then they're pretty helpful to getting us ready for trial and reducing the stress of

the first day of trial. Yet as I look at some of the items on these 100 days

before trial checklists, I'm struck by the notion that many of the things that

people talk about doing in the last 100 days are things they should have done long

before.

For example, there's this concept of cleanup discovery and completing discovery.

I can't tell you how many cases I've had where discovery was ongoing past the court

ordered discovery cutoff deadline and in the weeks before trial.

I've even had discovery going on during trial which is really a stressful and

unnecessary situation.

Yet on the 100 days before trial checklist I've seen, the items include review all

depositions, interrogatories, and case documents and evidence. Well,

you should have been doing that all through the case. From the very beginning of

the case, when you propounded your first set of discovery, you should have been

reviewing the responses. Then another checklist item is follow up on non -responsive

discovery and new areas to obtain information.

This doesn't work a hundred days before trial really. In California the fact

discovery cut off is 30 days before trial, so you have to propound your discovery

at least 60 days before trial. Well that's when we do cleanup discovery and cleanup

discovery is simply an interrogatory. Have you found any new documents or are there

any other facts that you would add to the discovery? Obviously the request is more

lawyer -like than that, but that's the gist of it. Tell me if anything's changed.

That's under the California rules, but under the federal rules, parties are obligated

to do that without request. So this following up is something that should have been

done long ago. And if you're just now following up on non -responsive discovery,

at least under California and other state rules, you may have blown the time to do

it. Because the deadline, here we are back to deadlines, for filing a motion to

compel in California's 45 days after receiving verifications to the discovery

responses. All that having been said though, if you've been diligent and on top of

the discovery that you've been doing throughout the case, there's no reason that you

cannot set yourself a deadline a hundred days before trial to make sure that you've

done all that you need to clean up discovery and fill in any gaps and tie up any

loose ends. So there is a role for the discovery section of the 100 days before

trial checklist, assuming that you've been diligent up to that point.

Another section that's common on these 100 days before trial checklist is a section

on fact witnesses, Where they say identify and secure your trial witnesses Again,

if you've been diligent if you've been reviewing the documents if you've been Taking

depositions and following up on the Responses you should know well before a hundred

days before trial Who the potential witnesses are and which ones you want as trial

witnesses? If by secure trial witnesses what's meant on the checklist is

Under the fact witnesses, it says if problems are anticipated take their depositions

and possibly videotape their testimony for use in trial. That should have been done

long ago. It may be that you have some that are scheduled to take place within a

hundred days before trial, but you shouldn't be doing this for the first time at

that point in the case.

Similarly expert witnesses are a topic on these hundred days before trial and one of

the checklists I saw said that a hundred days before trial you should research and

investigate all potential areas of expert testimony anticipated.

You should have done that with your initial case analysis months before you're facing

down a trial in a hundred days.

This has been part of your trial prep and your trial analysis and if you're just

getting to looking for experts within a hundred 100 days before trial,

you're going to be in trouble. Under most federal scheduling orders, you have to

have disclosed your experts and provided their reports more than 100 days before

trial. And under state rules, you're disclosing them 50 days before trial.

So if you're just waiting 100 days before trial you've got less than two months to

locate a suitable expert, get them up to speed on the information in the case,

provide them documents, get their review, and get their report. And what if their

opinions don't favor you? You've got very little time to find alternative experts or

to deal with experts that you don't, that don't support your case.

So again, experts should be determined well in advance.

And even though they don't have to be disclosed, you should be comfortable with your

experts. What their anticipated testimony is going to be long before you have to

disclose them and that means long before 100 days before trial.

Here's another item that's common to these 100 day before trial checklists. It's

consider or prepare to defend a motion for summary judgment or adjudication.

Well, here's the problem. In California, that motion will have been filed 105 days

before trial. That's because it must be heard at least 30 days before trial,

and the moving party must give the opponent at least 75 days notice. So if you're

just considering a motion for summary at a hundred days before trial in California

and perhaps other jurisdictions, there is going to be no motion for summary judgment

or summary adjudication. The time for filing is passed and you're a little late.

So even though I'm critical of some of the items that are on the hundred days

checklist, there are some things that I think are really helpful. And I think that

the best way to use the 100 -day checklist is 100 days before trial,

pull it out, and plan for these items. So one of them would be,

for example, sending out the cleanup discovery. and you don't have to send it out a

hundred days before trial, you just at a hundred days before trial look and say,

okay, I need to send this out to make sure none of the discovery responses

that I've previously received have changed. That's a good idea. With the witnesses,

I think you should be in touch with your trial witnesses, talk to them about

appearing, talk about whether they're going to need a subpoena, and tell them you're

going to subpoena them anyway, because that's a good practice, but they don't need

to be surprised by a subpoena, and they need to make arrangements that they don't

have to show up on the subpoena date as long as they're willing to show up within

24 hours of a phone call or some other arrangement so that you have some

flexibility at trial.

We've already talked about the experts about 100 days before trial.

That's a good time to start preparing your expert

disclosure and to make sure the experts are on top of their reports and are ready

to issue them.

You also need to look at jury instructions, finalizing those, other pretrial

submissions that the court wants. That would be a witness list, an exhibit list,

fact stipulations, all of the things that in my experience people customarily wait to

two weeks before trial to start focusing on, you can start focusing on a hundred

days before trial and that eliminates the procrastination. That makes sure that you're

ready when the real deadlines hit.

Now of course there's nothing you can do about opposing counsel. Opposing counsel

will start addressing these issues whenever he or she thinks is appropriate.

And in my experience, that's often much later than I want to address them.

But like I said, there's nothing you can do about that, but you can be ready.

You can have, if it's federal court, your part of the pre -trial conference statement

already drafted so that when it's time to circulate when you're ready and you're not

scrambling, you can already have your proposed stipulations of fact,

your proposed witness list, your proposed exhibit list. So you're ready to meet and

confer, you're ready to file these things on time and you don't have to drop

everything and scramble to get these things filed. Moreover,

you're calm, you can think it through, you're not making mistakes. And frankly,

if the other side is scrambling and rushing, they're likely to make mistakes.

And they're not going to look is poised and will put together before the judge, and

they're going to have some problems when it comes to their jury instructions,

their motions and lemony, that kind of thing because they haven't spent the time to

think them through and to word them and tailor them appropriately.

So the takeaway lesson from this episode of Coverage Cancell is in,

is go ahead and use a 100 day before trial checklist, but don't procrastinate the

things that are on it. In other words, use it as a checklist to make sure that

you've planned and completed things that should be planned and completed by then,

and that you can make sure that any gaps can be filled before trial is upon you.

It seems like we could eliminate a lot of stress in the practice of law. If

instead of considering a deadline as the date on which we're going to complete

something, we understand that we have a deadline and we complete the deliverable for

that deadline in advance of the deadline. There's no reason that says you can't

draft your summary judgment motion and hang on to it before it needs to be filed

and then just calmly file it on the date it's due. There's nothing that says you

cannot have all your pre -trial materials ready to go well before the deadline and

just have them staged to be filed on the appropriate date.

My ask in this is that we get away from thinking of deadlines as the deadline

we're going to meet by the skin of our teeth and actually plan and know we have

something coming up on that date, so I need to finish it a few days before.

I think in doing that, that would allow us to avoid Parkinson's law.

We would not take more time than is necessary to complete something. We would not

procrastinate completing it until it was due, and we would certainly lower the stress

level, and perhaps be better prepared than otherwise. So thanks for listening to this

issue of Coverage Counsel is in, and until next week, this is Bob Salander, signing

off.