7 August 2024 (consultation running to end September 2024)
Google Form questionnaire for feedback

1. Introduction

We have created for public comment some draft templates of standard phases and related information for three broad types of legal matter

• Finance
• Commercial Real Estate Transaction
• Binding Dispute Resolution

They are deliberately high-level and intended to be of international relevance across a variety of contexts.

To maintain usability across such a wide range, each has only a small number of phases: between five and seven each. But we’ve also produced some samples of more specialist sub-types in order to illustrate how they may be configured in ways that are maintainable and can form a basis for generating good quality data.

2. Questions we’re consulting on

We’ll be gathering feedback through our networks and publicising the project via social media. There’s a Google Form questionnaire anyone can fill in - please consider doing so once you’ve had a look at the material.

The four questions are

1. Needs. Do you have a need personally or in your organisation for standards like these? If so, where are the most acute needs you expect to do something to address in the short term?

1. Uses and design. How specifically would you like to be able to use such templates for and how well does the design fit those uses? Do you have any comments on aspects such as the parent-child concept, the mapping and the specific fields represented by the columns in the spreadsheet? 

1. Involvement. How specifically would you like to be able to use such templates? How well does the proposed data structure fit those uses? Would you change anything structurally? Do you have any comments on aspects such as the parent-child concept, the mapping and the specific fields represented by the columns in the spreadsheet?

1. Content. Feel free also to let us know if you have a view on the way particular phases have been broken down and the descriptions in the particular fields so that the relevant working groups can consider this.

3. Open source

Once we’ve gathered and digested feedback, we plan to finalise and release the material on a permissive open source basis (Apache 2.0 terms as usual with noslegal) in late 2024. “Permissive open source” means that anyone can use, adjust and remix them for any purpose without strings.

4. Relevance

These templates are intended to be relevant in these contexts:

• Process improvement
• Budgeting and pricing
• Time recording and cost tracking
• Reporting
• Legal project management
• Making practical legal knowledge available at the right point in a process
• Search

.

5. Sub-types of templates

To illustrate how more specific sub-types of the templates might be based on them and managed efficiently, we’ve produced some examples.

For Finance, the sample sub-type is based on a particular type of finance - Asset Finance.

For Commercial Real Estate Transaction, the sub-type is based on a particular jurisdiction - England & Wales.

For Binding Dispute Resolution, we’ve explored a wider range of sub-types:

• Two next-level-down sub-types:
• Civil Litigation
• Arbitration or Expert Determination

These retain the same phases as Binding Dispute Resolution.

Civil Litigation also has two sample sub-types of its own.

• One for England & Wales based on the official-but-voluntary phases adopted there a few years ago, but with some additions to cover significant areas not split out by these

• The other is also for England & Wales but greatly simplified

Arbitration and Expert Determination has one sample sub-type which slightly expands its phases to separate out those which typically have a different business model. This is useful for budgeting and tracking of time and financial metrics.

6. Mapping

All these sub-types are just draft possibilities or proofs of concept - illustrating how the standards can be extended to specific contexts but with clear mapping of phases between parent and sub-type.

Mapping makes it easier to

• manage them by flowing enhancements into related templates
• compare time and finances across matters which are superficially 
• allow different people to adopt different levels of granularity for different purposes - e.g. an internal budgeting exercise by a highly experienced financial profession may benefit from more detail than is presented to less specialist audiences

7. Data structure

Each template has a name, level (1 for the top level, 2 for its immediate 'children' and so on) and the name of its parent (for those below level 1). It also has some overview notes explaining the design choices which have been made.

Each phase has

• a number, a name and the key steps involved, expressed as succinct bullet points
• a list of work commonly involved - as verbs or verb phrases
• a list of outputs (also known as deliverables) commonly involved - as nouns or noun phrases

The number indicates a typical order in which the phase is encountered, though this can vary in practice.

The key steps are intended for human readership, to clarify succinctly what's involved.

The lists of work and outputs distinguish what's commonly required from those doing the work and what the client sees - which in legal work is often reflected in documents even though the client will of course have wider objectives.

Work and outputs are intended for two main uses

• Automated use, for example to identify what phase a particular communication or time entry likely relates to

• As a starting point for those designing more detailed templates including structured tasks, milestones and outputs

8. No breakdown into structured sub-phases or tasks

For practical purposes, it can often be useful to break down phases into structured sub-phases or tasks, and to add clear milestones or deliverables.

However, there is often debate and differences of view about this between

• Places
• Contexts
• Organisations
• Individuals

We think there is major value in simply identifying phases and then providing further material in the less structured ways we have implemented, without getting bogged down into practically unresolvable debates about sub-division.

9. How standardisation can help

Consistency in phases can with making these things more accurate and efficient

• Reporting on progress
• Recording time and reporting on associated financial metrics
• Avoiding the gaps, overlaps and ambiguities of an overly custom process
• Avoiding the time costs of developing and patching such a process 
• Using the resultant mappings and data to improve the process
• Linking up substantive legal knowledge to the relevant stage in a process
• Learning how to handle a process in the first place

Making these things more accurate and efficient helps in turn with things like

• Better budgeting, pricing and profitability
• Communication, lessening confusion and building trust
• Lower risk of error resulting from failures in process and communication
• Coordinating complex projects in which, for example, there are parallel processes running internationally 

10. Problems encountered with existing standards

Everyone involved in the project works with existing phase and related standards in this area, mainly in the UK / European context. 

In practice these standards are mostly private ones 

• developed by a particular law firm or 
• developed by corporate clients and imposed on firms for time recording, billing and reporting purposes. 

That said, many of these private standards have clearly been, or seem likely to have been, influenced by the UTBMS standards developed and published in the United States in 1997, with incremental additions since 2007.

We decided to work together on this project because of problems such as these:

(1) Poor fit of existing standards to the reality of work, client expectations or both

 Two related problems we discussed here were

• Phases over-fitted to particular local or or other specific approaches, reflecting the perspectives of those who prepared them but not suiting the wider population of those using them

• A tendency towards over-complication resulting in irrelevances, unusability (e.g. when time recording), differences of opinion, ambiguities, overlaps and gaps

We think these are best addressed by an inter-organisational, international effort to address these topics, staying at a suitably high level for the base template on a given topic then breaking it down in ways which can be used directly in a particular place / context or which can at least give people a good idea of how to do so for their own needs.

(2) Tendency to address worker or client needs but not both

Some participants gave examples of time-recording based on an internal set of phase codes (tending to emphasise the work to be done) having to be mapped laboriously to separate codes imposed by particular clients (tending to emphasise progress towards outputs).

(3) Fragmentation

The subsequent fallout is many custom versions of phase codes; which, when addressed as a whole, suffer from arbitrary failures to take the same approach to things which are clearly the same. 

(4) Specific design issues 

(a) Phases which tend to be interpreted as ‘general’ or ‘misc’ activity and thus become a source of inconsistent practice and poor data (as a result of time being conveniently recorded there which ought to have been recorded in some more meaningful phase).

Examples of phases of this sort were along the lines of

• Advice
• Planning
• Correspondence
• Out of scope work
• Project management
• Specialist input

An example of what we sought to avoid is the “Case Assessment, Development and Administration” phase of the 1997 UTBMS (US) Litigation template which is defined to include a miscellany of seven topics.

That said, we have after careful discussion allowed for “case management” in a carefully defined sense in dispute resolution and “structuring” (again carefully defined) in the finance and commercial real estate contexts as we considered that these were useful and definable phases in those contexts).

(b) Gaps, overlaps and unclear boundaries between phases. This is related to the problems of over-complication and over-fitting.

(c) Other things which were conceptualised as phases inconsistently in some contexts, and which we see as matters of organisation policy rather than phases to be standardised

Examples are:

• Administrative set-up of matters
• Out of scope work (relevant for time recording when on a fixed or capped fee)
• Retrospectives / after-action reviews

11. Broader problems with adoption of standards

We also acknowledged in our discussions that the above issues are only parts of the broader problems related to issues about process, project management and pricing in legal work, and that even with better standards a significant effort will be needed

At a community level

• Raise awareness of them
• Incorporate them into relevant software systems
• Ensure that the problems and issues are understood and not repeated by poorly thought out customisation
• Gather feedback effectively and incrementally improve them in ways that don’t repeating old problems

At an organisation level

• To engage effectively with the benefits of standardisation
• To provide feedback
• To use the standards as one of the building blocks for achieving better process, project management, reporting, budgeting, pricing and profitability

12. Our methodology and AI

One argument for not embarking on this sort of project at all is that AI will render process and other types of legal concept standardisation irrelevant by enabling the relevant needs to be addressed simply by using the unstructured words and other data reflecting what people do in legal work.

Our view on this is that

• AI does have an important role to play in analysing what people are actually doing, and in testing standardisation efforts against what is ‘out there’ already, whether publicly or in the private data to which an organisation has access.

• But there are limits to the approach of just trying (in effect) to observe more closely what people do by using data and AI. 

• The conscious and collaborative articulation of and reflection on process, and the reduction of the results of such reflection into structured materials, are essential if people and organisations are to really manage, understand and improve what’s being done.

A big question, then, is how to balance the approaches. 

The approach we have been exploring is

• To design the phases based on the experiences  of project participants. So far, this tends to be centred around some combination of UK / English / European practices.

• To seek to take into account ambiguity, gaps and the other practical problems mentioned above, based on our practical experiences.

• To debate this, seek comments privately from our colleagues and contacts.

• To develop our lists of work and outputs manually first but then to test our thoughts against what we can find internally in our organisations, and publicly.

• We also used AI tools for some practical purposes such as comparing and alphabeticising lists, and brainstorming possible reorganisations and additions. But very much as just a tool, with a sceptical eye on accuracy, relevance and design questions such as the boundary between phases.

• Taking all that into account, we have made some conscious judgements on what’s the appropriate design. 

We stress that this is our working view on the relationship between human and other approaches to the design, and that we have proceeded thus far with limited resources. 

We should also mention for clarity that we think that in a particular organisation we think it is likely to be desirable, if taking process seriously, to break things down in a structured way below the phase level when producing your own templates and in managing matters. At that level of detail and within an organisation or team, it is feasible to do what is infeasible at the higher levels of abstraction and wider audience we are addressing with our public work.

13. Notes on specific templates

Finance and Commercial Real Estate

These have a broadly similar structure

• An initial phase which includes structuring
• A due diligence phase
• One or more phases focused on progressing the documentation
• A phase for closing / completing the transaction
• A phase for post-closing / completion

Even for these common factors, there are certain differences in terminology and phase content at the moment which we have left unresolved as we think it’s useful to have these different versions on the table for the consultation and next round of development. In that next round, we also want to explore abstracting to a further “commercial transaction” level with specific types such as finance and commercial real estate being but two examples.

Incidentally, the use of ‘closing’ for the international version but the very England & Wales term ‘completion’ for the E&W version of the commercial real estate transaction illustrates how we envisage that templates can be localised.

Binding Dispute Resolution

The topic of binding dispute resolution has been explored in more layers than for finance and commercial real estate, with a view to investigating how the approach can be scaled and adjusted for particular uses through careful mapping.

One difficulty that arises is where a local practice already tends to divide up work in a way which doesn’t easily map. Resolving this satisfactorily does require a view to be taken as to which approach is better. A concrete illustration is that we think it is most convenient and useful overall for all settlement efforts to be captured in a single phase. The voluntary phases published by the civil court administration in England & Wales some years ago treat settlement before the initiation of proceedings as a part of that initiation phase, however. We have made clear in the template our disagreement with and departure from that.

Another, larger, example of a similar problem is that different legal systems do of course have significant differences in their processes - for example, in how the development of legal submissions and the preparation of evidence are sequenced. We have addressed this by consolidating such topics at the higher levels and paying attention to the mapping of the more detailed phases in particular sub-types.

Another issue which this work has illustrated is that different communities may have legitimate needs for different levels of detail. Again mapping can help satisfy both without them having to go their separate ways.

14. Who did the work

The phases and content of related fields were prepared by (in alphabetical order) Tom Bennett, Josette Bockelie, Charlotte Hillyard, Graeme Johnston, Molly MacGregor, Will Whawell and Arani Yogadeva, who also consulted colleagues. Jacob Capleton, David Parker and Amarjit Syan also provided input on specific points.

This document was written by Graeme Johnston with comments from others in the team.

A version of this document in Google Docs is here - the text is the same but there are a few footnotes as well.