What is Legal Process Design?
Historically, lawyers went about gathering facts and applying the law to those facts in whatever order they wanted. Most lawyers today still consider law an art and are generally unwilling to create or operate according to defined processes.
Due to increased legal service fees, lawyers at corporations have been trying various ways to safely reduce costs. One such way is to break a process down into sub-functions and assign a lowest cost resource to each sub-function of that process. In the world of patent process outsourcing, sub-functions are often carried out by three types of resources: administrative resources, engineering resources, and lawyers. Legal process design is the intelligent orchestration of various resources to produce well defined high quality deliverables according to repeatable, trainable, measurable and scalable processes. It is not surprising that patent lawyers have taken the lead in reducing the practice of law into defined processes since they have undergraduate degrees in science and engineering. Legal process design would best be understood by example. This is not a comprehensive example, but it will give you the idea.
Administrative Sub-function: Gather documents needed to prepare a claim chart, such as the patent, the file history, blank templates. Receive prior art information, specification support information, and issues spotted by the engineer, and assemble the information as directed by the engineer into the deliverables.
Engineering Sub-function: Receive the patent from the admin or lawyer, review and identify the best support for each claim, review and identify issues in the claims, specification, and prosecution history, conduct search and select the best invalidating references, review and identify the best invalidating language, assemble all issues spotted during the analysis, and monitor the admin as the information is assembled into the lawyer approved format.
Lawyering Sub-function: Answer questions from the admin and engineers as the project proceeds. Review the deliverables and verify the sources of information where issues were spotted. Draw legal conclusions about which of the issues spotted by the engineer will form the case strategy. Discuss the findings with the client.
Identify Sub-sets of Issues
When you decide to design and implement a process, you can’t possibly make a lawyer out of your engineers in a short period of time. At best, you can select a sub-set of issues that are likely to show up in many cases, and teach them those issues first. As they improve, you can slowly integrate more issues into the process.
As a legal process designer, you must decide which issues to start with. Then you must train the issues in a practical way. It can’t be all theoretical. You have to introduce practical examples into the training materials so they can spot the issues when they come up.
Create Step-by-step Instructions
You have to create a step-by-step process to be followed. The best way to do this is to do the process yourself and note what you did each step of the way. It often surprises lawyers when they realize they can break their job down into a step-by-step process. They quickly learn that it is a more efficient and profitable way to teach new associates and engineers. The subsets of legal issues identified above have a natural place in your process. So you direct the engineers where and how to make observations or comments about each issue as they move through the relevant part of the process.
Your step-by-step process should explain what you are doing, why it is helpful to you as a lawyer, and give examples of what it looks like when each step is done correctly. It is best to do more than talk about it. Show them what it looks like.
Create Templates and Example Deliverables
Continue through your step-by-step process and create an example deliverable for each deliverable kind. You need to explain what each field in the deliverable is and how to complete it. That detail needs to be somewhere, whether in your step-by-step instructions, or instructions associated with each deliverable kind.
It is best if you can create consistency by having everyone use the same deliverable format. It becomes much easier to teach a team of admins and engineers when there is one right way. Later, you can customize as receiving lawyers ask for changes.
When an engineer spots an issue in the file corresponding to the subsets of issues, it is best to have a sample comment they can place in the deliverable for that issue. Over time, as they become more sophisticated, you can give them consent to use some creativity in making their own comments. However, while they are new, it is good to use sample comments. You can add sample comments below each issue in the issue subsets or have a separate sample comments document.
You need to create theoretical and practical testing materials. When training the process, you need to have reading material each week (or day), and assignments that prove they are assimilating the information. Do they understand the law? Can they apply it to example fact patterns to correctly identify and comment on an issue they spot? Are they identifying the best claim support? Are they mapping the best parts of the invalidating prior art reference against the claim? It takes a lot of time and effort to design and train a process at this level of detail, but it is the only thing that works.
Tie the engineer’s future success to testing scores. If they take the legal training seriously and score well on the tests, then they move up into management positions. If they continue to test well, they stay in management. Managers involved in the editing and review of projects, must continue to keep their scores up in order to stay involved in substantive review.
Test the team once a year or so on the most important issues. Are they remembering what they need to do the job? Are they using the process as designed or are they taking short cuts now?
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Thanks for stopping by, Dan Bell of Bell Certified (Contact me.)
Do not disclose confidential information to me. This is not legal advice or opinion. This does not represent the current state of the law and does not include all issues relevant to this topic. Do not take any action based upon this information without discussing the facts of your case with your lawyer. I hereby refuse to be your lawyer. I am only teaching now. Copyrights © 2010 Dan Bell