Managing at volume is not litigating in series: the importance of identifying the exceptions
A portfolio of hundreds of cases may share a common structure without every matter being legally identical. Volume case management calls for uniform rules to be laid down and, at the same time, for systems capable of detecting the circumstances that require departing from those rules and subjecting the file to individual analysis.
Talk of volume legal case management can easily give rise to a mistaken picture. Hundreds of identical cases, identical documents, automated decisions and a process designed to repeat one and the same step as many times as may be necessary. That picture explains part of the efficiency that makes it possible to work with large volumes, but it leaves out precisely what determines the legal quality of the service: the ability to detect when a file apparently the same as all the others has ceased to be so.
Managing five matters and managing five thousand is not simply a question of doing a thousand times more work. Beyond a certain volume the method has to change. Legal knowledge must first be turned into criteria, rules and procedures capable of being applied uniformly. Technology must make it possible to run them, to monitor how they develop and to record any issues. And the organisation must ensure that situations departing from the rules are identified and referred for review.
1.What is repetitive can be systematised
A large portfolio normally has a great many features in common. The files may arise out of the same contract, the same class of obligation, a similar type of insured event or the same category of liability. The documents may follow a recurring structure and the claims may rest on shared legal grounds.
That is precisely why it is reasonable to lay down a common methodology.
If every lawyer analyses every element of every file from scratch, drafts equivalent documents afresh and takes again legal decisions that have already been worked through, the advantages of scale disappear.
Standardisation makes it possible to avoid this.
It is possible to define in advance what documents are required, what checks must be carried out, what criteria are to be applied, what steps belong to each stage and what documents may be used in equivalent situations.
In this way, the file that fits the expected pattern can move forward efficiently.
The truly interesting problem begins when it stops fitting that pattern.
2.The exception may lie in a detail
Two debts may have exactly the same origin and one of them be partly paid. Two liability claims may arise out of the same class of accident and present a different causal link. Two insurers' recovery claims may fall under the same general scenario and be affected by different documents. Two claims for owners' association charges may look economically identical and raise different questions as to their amount or whether they are due.
These differences are the exceptions.
Properly designed volume case management should not seek to eliminate them. It should be particularly effective at identifying them.
To do so, it is first necessary to determine what information we want to have about each file. And that decision is not an IT decision, but a legal one.
The lawyer must identify which circumstances may affect standing, the basis of the claim, the amount, the evidence, limitation, the negotiation or the litigation strategy.
Only then can that knowledge be transferred to a system capable of detecting those circumstances.
If the system does not record a piece of information because it was initially considered irrelevant and months later we discover that it is decisive, it may be necessary to review hundreds of matters by hand in order to find out in which of them it was present. The larger the portfolio, the more important it is to get the design stage right.
3.Working by exception changes the organisation
Management by exception allows professional resources to be used differently.
Not every file needs the same level of intervention.
A matter whose documents are complete, whose data match the pattern defined in advance and which presents no issue at all may follow a largely systematised route. Another in which a specific objection arises may be halted so that a lawyer can analyse it. A third may be complex enough to leave the standard procedure altogether and be handled as an individual matter.
This structure does not necessarily reduce supervision. It makes it more selective.
The aim is not for the lawyer to intervene by hand in every operation. It is to ensure that the lawyer intervenes when there is a decision that genuinely requires legal judgement.
In a portfolio of condominium (“propiedad horizontal”) matters, for example, it may not be necessary for a professional to check by hand, hundreds of times over, data that have already been properly verified through a reliable procedure. Their attention is far more valuable in the file that shows an issue with the debt or a circumstance that alters the claim.
The same can happen in insurance with a recovery claim that raises a specific question of liability or subrogation. And in civil liability, with a matter whose causation or evidence departs from the common pattern.
Technology makes it possible to separate out these files and direct them towards different levels of review.
4.A repeated exception may cease to be an exception
Volume management also offers an advantage that does not exist to the same degree in the individual file: it allows patterns to be observed.
An isolated issue may be simply that, a particular feature of one case. But if the same issue begins to appear in fifty, a hundred or two hundred cases, it probably deserves a different reading.
It may mean that the general rule was incomplete.
If numerous defendants raise the same objection, it is worth analysing whether there is a common problem. If many files show the same documentary gap, perhaps the way those documents are generated or brought into the portfolio needs to be changed. If certain matters systematically present an evidential difficulty, it may be necessary to change the criterion by which they are selected.
Genuine volume case management must be capable of learning from itself.
The initial rules are necessary in order to begin, but they should not be regarded as immutable. The information obtained while the matters are being handled must serve to review the strategy.
This turns the portfolio into a source of knowledge.
Matters already handled make it possible to improve those that follow and, on certain occasions, even to change internal client processes that lie at the origin of the litigation.
5.Not every difference justifies individual treatment
The system must also avoid the opposite error.
If we take the view that any difference between two files calls for a full individual review, the advantages of scale will disappear. The difficulty lies in determining which differences genuinely have legal significance.
Not every differing piece of data is relevant. And not every apparently small piece of data is unimportant.
A date may determine whether a right of action is time-barred. A different word in a clause may alter its scope. An earlier communication may change how a negotiation is assessed. Whereas other differences can be absorbed into the standard process without altering its basis.
Telling the two categories apart requires knowledge of the subject matter.
Volume case management therefore does not lessen the importance of legal analysis. In many respects it moves it towards the beginning of the process. Before turning knowledge into rules, one has to understand in depth the problem those rules are intended to solve.
The better that work is done, the greater the number of files that can be managed uniformly without any loss of quality.
6.The strategy must be able to change
A large portfolio may remain active for months or years. During that time there may be legislative changes, new case-law criteria, changes to the documents or simply lessons drawn from the cases themselves.
No strategy, therefore, should be regarded as unalterable.
If the legal criterion changes, it must be possible to know which files are affected. If a template is amended, it is useful to know which matters used the previous version. If a new issue requires a different category to be created, the system must make it possible to locate the cases that share that feature.
This capacity for review is what distinguishes genuine portfolio management from a mere accumulation of cases.
It is not enough for each file to be properly handled in isolation. The portfolio must be able to react as a whole when a shared premise changes.
Version control, classification and traceability thus take on a directly legal dimension. They allow knowledge to be applied consistently over time.
7.Error can scale too
Automation brings an obvious advantage: a properly designed decision can be carried out consistently across thousands of matters.
But there is a converse consequence.
An incorrect rule can also be applied thousands of times.
Volume processes therefore need specific validation mechanisms. A new automation should be tested before it is extended to the whole portfolio. A significant change must be subject to control. Automated steps must be capable of being audited.
This is not a matter of reviewing by hand everything the system does, because that would destroy the efficiency. It is a matter of putting in place controls proportionate to the risk.
Purely operational tasks may have one level of supervision. Steps with significant legal consequences must have another. And strategic decisions must remain clearly subject to professional intervention.
Scale calls precisely for an intelligent distribution of control.
8.The aim is not to handle more, but to manage better
The number of cases that can be handled should not be the only measure of the capacity to manage at volume.
It also matters to know how many files show issues, how long they remain at each stage, which problems arise most frequently, which matters ought to be negotiated and which it may not be efficient to take to court.
Good management may even conclude that certain files should not become court proceedings.
Economic analysis forms part of the strategy. A legally viable claim may not be a reasonable one if the prospects of actual recovery are slight or if the cost of pursuing it outweighs its usefulness.
Working at volume makes it possible to introduce these criteria from the outset and to apply them consistently.
Aggregated information also helps to assess whether the strategy is working. Not only how many matters produce a given outcome, but why they produce it.
A high percentage of settlements may mean that negotiation is working properly, or that matters are being taken to court which could have been resolved earlier. A high number of favourable decisions may look positive but prove of little significance if there is then a systematic difficulty in enforcing them.
Data need interpretation.
Managing at volume does not, in short, mean reducing each file to a number within a portfolio. It means building a system solid enough to manage thousands of matters and sensitive enough to notice when a different problem lies behind one of them.
Efficiency lies in standardising what can genuinely be repeated. Quality lies in identifying what cannot. And it is legal knowledge that makes it possible to draw the line between the two.
