If you have been a long-time reader of the blog or my books, you know that I am a huge fan of checklists.  There is perhaps no tool as humble and simple as a good old-fashioned checklist.  There is also nothing more powerful than a checklist, especially when it comes to productivity for in-house lawyers.  Early in my in-house career, I had a friend and mentor who told me we needed to create some new standard operating procedures for the legal department.  I got very excited as this sounded like a cool, exotic assignment.  And it was about time my talents were utilized for just such a task.  Then he pulled out a one-page document with a list of tasks and tick-boxes next to each one.  I was kind of puzzled and said, “This is just a f*&%$# checklist.”  He paused for a moment and then smacked me upside the head, “Say that with respect newbie.  A good checklist can save your ass someday!”  Okay, that’s not all 100% accurate.  He did not call me “newbie” – it was something much, much worse.  But, seeking to avoid further disorienting blows to the cranium, I became a fast convert to the power and beauty of a good checklist … ummm, standard operating procedures.  Over the years, I created hundreds of checklists for myself, for my team, and for others.  I still use them literally every day.[1]  Like many things with the practice of law in-house, no one teaches you why a checklist matters or, more importantly, how to create one.  You’re just expected to know how.  I realized that while I write about them a lot, I have been remiss in not explaining the “why” and the “how” of checklist magic.  This edition of “Ten Things” corrects this state of affairs and we will get elbow-deep into the slimy, bloody guts of creating a good one:

1.  What is it?  There is a classic example of the value of standard operating procedures (SOPs) whereby a manager asks each member of her team to write out how to make toast.  One employee starts with putting bread in the toaster, another starts with buying the bread, yet another starts with picking which type of bread to buy, and so on.  The point is that while you may think something is crystal clear to your team, this is not always the case, and any group of people can have widely varied understandings and methods of completing any given task, no matter how simple.  A checklist[2] solves this problem because it sets out (in a step-by-step fashion) a list of instructions that guides the user on how to complete the task at hand.  By doing so, you can ensure that any given task is completed the same way each time by the team.  In addition to specific tasks, checklists can simply be a reminder of all the things that must occur when there is a “triggering” event, e.g., a new lawsuit comes into the legal department. I used this latter type of checklist frequently as general counsel.

2.  Why they matter. I could probably write an entire blog on this topic alone but let’s start with something pretty basic, i.e., it is hard to enhance productivity in the legal department if everyone is doing things in their own particular manner.  You may think your way is best, but is it really?  And if your way is actually the best way to do something, wouldn’t it be better if everyone did it the same way?  SOPs solve this problem by bringing the following benefits to the legal team:

• Standardization and consistency (repeatable tasks are done in the same manner every time and everyone knows what is expected and what to expect).
• Error/Risk reduction (a set of instructions on how to accomplish a task or what to do when a triggering event occurs reduces the chances of mistakes.  This will also reduce costs).
• Increased productivity (yep, everyone doing critical tasks in the same way each time and every time increases and enhances productivity for the individual and the department overall. And they provide a ready audit tool for you to go back and ensure that what is set out is still the best way to do something or whether changes are needed – a poor man’s Six Sigma process).
• Training and knowledge transfer (SOPs and checklists assist in training and the transfer of critical knowledge vs. the usual “oral history” of how things are done that most legal departments embrace).
• More effective delegation (many in-house lawyers are reluctant to delegate because they do not believe the task will get done correctly.  SOPs solve that problem, i.e., just follow the checklist).
• Stress reduction (we all become more confident in our work when we have a checklist handy to assure us that we have not forgotten anything – or that the people we manage have a list of all necessary steps.  This reduces the stress we all feel in the rocket-fast world of practicing law as an in-house lawyer).

There are other benefits, but I think this list is a good representation of why SOPs matter so much.  Any one of these alone would be reason enough to create them.

3.  When are they needed?  This is easy.  You need them now.  Today.  Stop reading this blog and get busy writing out your checklists!  Okay, don’t stop reading.  But, as soon as you are done with this post, I would bet big that you can think of at least five checklists that would make your life easier (either for you personally or for the legal department overall).  In general, though, I think you determine when an SOP is needed by first thinking about the day-to-day operations of the legal department.  Start a list of tasks that come across your desk each day over the course of a couple of weeks and ask yourself, “Would this task lend itself to a checklist?” If so, put it on the list.  Here are just a few that I created over the years:[3]

• Review of SaaS Contract.
• Review of Procurement Contract.
• What to do When the Company is Sued.
• Tasks Post Board of Directors Meeting.
• Evaluating Risk.
• Thinking Strategically.
• Investigating a Violation of Business Ethics Policy.
• Offboarding a New Employee.
• Onboarding a New Employee.
• Who Needs to Know?
• Litigation Hold Process.
• Preparing for Board Meeting.
• Sending a Contract to Legal for Review.
• Annual Insurance Policies Review.
• Yearly Corporate Filings.
• When an 8K is Needed.
• When Someone Needs an H1B Visa.
• Data Breach Response Plan.
• Crisis Response Plan.

There were/are many others, but this gives you some flavor of when and how a checklist can be useful.  If you worked for me, you probably remember exercises to capture all the critical operations of the legal department in a series of checklists so that if anyone won the lottery and left, the transition would be much less painful.  And you know that my preference was to keep every checklist to one page (i.e., the infamous “one-pagers”) as I believe that is generally the most effective length (more on this below).  However, that is not always possible, e.g., “Data Breach Response Plan.”  In the end, your SOP/checklist should be as long as you need it to be to be effective.

4.  Get input from others.  While some checklists are just for you, the most effective ones are those that will assist others in the department or the business (see above for example, “Sending a Contract to Legal for Review”).  Your checklist will be much better if you seek out and get the input of others.  First, it will ensure that you are thinking of all the steps that you must document in the SOP.  Second, since the checklist is aimed at you and others, getting their input will help ensure that it is written in a way that anyone can follow and is not idiosyncratic to you.  And third, everyone appreciates being asked for their input.  It’s a sign of respect and that you value their opinion.  In addition to getting useful insights, this will help build up the connective tissue that helps a legal department function like a team through better coordination and collaboration.

5.  Think through each step. When it is time to put pen to paper, take your time and think through each step in the process you are trying to document.  I would start mine by simply walking through everything I would do to handle the process at hand and write down each step (e.g., the tasks I needed to complete post-board of directors meeting). I would either pretend that I needed to do something or, when a process ripe for an SOP came up, in addition to just handling the work I would also document my steps as I went along – creating a checklist in real-time.  Sometimes I would ask people on my team to create an SOP regarding tasks they were responsible for.  I would not only tell them “how” (if they needed that assistance), but I would also sit down with them and walk through their first draft to make sure we had not missed a step.  Not only was this helpful for me as head of the legal department but working on the SOP together made sure it set out the right steps, in the right order, and with the right amount of detail.

6.  The elements of a SOP.  When creating your checklist or SOP, here are some core elements common to all:

• Title.
• Purpose.
• Definitions/Acronyms (if any).
• Version/Date.
• Procedures/List of Steps.
• Visuals (if any, e.g., screenshots).
• List of Required Resources (passwords, links, contacts, etc.).
• List of Attachments (if any).
• Person Responsible for Maintaining the SOP.

As you can see, it’s pretty basic stuff and there is zero need to over-complicate it.  Checklists are like playing checkers – no need to pretend you are playing chess here.

7.  Tips for writing SOPs.  Now for the fun part!  When writing your SOP or checklist you have several paths.  I always go with the least amount of detail needed to accomplish the purpose of the SOP.  The more complicated you make it, the less likely it is to be useful.  Above, I set out the elements.  Not all of those are necessary for every checklist you prepare.  But, once you are ready, the most common ways to document your process are a linear checklist, a flow chart, or a combination of the two.  I prefer a simple checklist of tasks over a flow chart.  To some extent, it depends on the end-user and how best to ensure that they can easily follow the process set out.  So, start writing with the end-user in mind.  Next, consider the level of detail you need.  If you are writing a checklist for yourself, you will likely need less detail. If you are writing the list for someone else, you may require more detail.  A simple checklist means a series of simple high-level steps, versus what is known as a “hierarchical” checklist, i.e., high-level steps with detailed sub-steps.  I give you an example of each below.  When writing out the checklist do the following: a) organize it logically, b) keep it simple (or as simple as circumstances allow) with one page being the goal if possible, c) use the active voice,[4] d) be clear and concise – with no doubt about what is needed for each step, e) make it “user-friendly,” i.e., easy to read/follow, tick boxes to cross off items as completed, screenshots, charts, and images where visual items are appropriate, and f) if you operate internationally, be prepared to translate it into other languages (or alter it as local requirements may warrant).  Here are two partial checklists to demonstrate what I mean.  The first is a high-level simple checklist and the second is a hierarchical checklist:

Contract Review Checklist

• Has mutual indemnity provision.
• Has confidentiality provision.
• Has limitation of liability provision.
• Excludes consequential and punitive damages.
• No arbitration clause.
• Invoices are paid within 30 days.
• Choice of law is New York.

Pretty straightforward and basic.  If the checklist is just for me alone, then this type of list is highly effective in terms of just reminding me to check issues I am well versed in.  But, if I am new to the legal department, a checklist like this may be too basic to ensure I am spotting contract issues the company cares about.  Here is a portion of the same checklist set out in a hierarchical style:

Contract Review Checklist

• Choice of law is New York.
  • We will accept Delaware.
  • We will not accept California.
    • If there is an issue, consult with managing attorney regarding acceptance of different jurisdiction.
  • Ensure costs and attorneys fees are recoverable by prevailing party.
  • We will accept waiver of jury trial.
  • We will accept exclusive venue in New York or Delaware. Any other jurisdiction requires approval of managing attorney.

The second version is much more detailed and designed to help someone who is not familiar with the company’s preferences and/or to ensure uniform terms in contracts with exceptions vetted at the appropriate level.  The second version also lends itself nicely in the event you need to outsource contract review to outside counsel, as they can easily follow the company’s expectations without a lot of back and forth with you or your team.

8.  Test it!  A checklist isn’t very good if it fails in its essential purpose.  It is important to test the checklist at the first opportunity to make sure it captures all necessary steps, is easy to use, and so forth.  Doing so is easy when the checklist is just for you or covers a task that happens frequently, like reviewing contracts.  You can edit it as you go along.  Similarly, you can (and should) give the checklist to multiple people in the legal department and get their feedback too.  If, however, you have created an SOP for an unlikely or rare event like a data breach or for crisis response you need a different plan.  First, SOPs covering such rare events are likely multipage and filled with detail so there is a level of complexity present that is not found in a simple one or two-page checklist.  Second, testing these SOPs will involve a lot of people, usually at the higher levels of the company.  This means that you will need to run a simulation or “tabletop” exercise[5] and get the buy-in from senior management to do so (as these are disruptive to company operations) and get their participation in the exercise.  Practicing for a crisis, data breach, or other significant event without the participation of senior leaders is a waste of time.  And it will likely take all your powers of persuasion to make it happen.  But such testing and participation are critical to ensuring that your big-ticket SOPs cover the myriad of issues a real crisis can present.

9.  Keep them updated/easy to find.  In addition to testing your SOPs at the time of creation (or via tabletop exercises), set a time frame for regular review and updates.  Some updating will occur over the normal course of business as users make adjustments and tweaks (and make sure you have a process to capture those changes for the benefit of everyone in the department), but at least once per year, you should go through all the SOPs/checklists used by you and/or the legal department to ensure they stay current and useful.  You do not need to do all of them on the same day or the same week (that can be unproductive).  Stagger your review over the course of the year with calendar reminders to tell you when it’s time to review which SOPs.  The owner of the SOP or checklist should be the person driving the review and is responsible for any updates.  Alternatively, this is a good assignment for someone younger in the department to give them ownership and responsibility for something important.  Lastly, make sure your checklists are stored in a place where your team can find them when needed.  We just had a folder called “Legal Department Checklists” in our document management system.  It does not need to be any more sophisticated than that.

10.  Resources.  I learned about checklists and SOPs early in my in-house career (see “Painful Smack Upside the Head Incident” referenced above) and through a lot of experimenting – and failure – over many years.  Fortunately, there are some excellent resources available to you if you would like to go deeper.  To start, I include some of my checklists in all my books.  So, that is an easy way to see those examples.  I also set out some in past editions of this blog (just search for “checklist”).  But, if you want a more trustworthy resource than a brain-addled checklist monger from Nebraska, here are a few other places to go for more on SOPs:

• Standard Operating Procedures (SOP) Manual for Legal Department SOP-1121.
• How to Write Standard Operating Procedures: Experts Provide Tips and Free Templates.
• Checklists for Lawyers.
• 50 Sample Legal Checklists.
• How to Write Standard Operating Procedures (With Template).
• Developing a Legal Compliance Program Checklist.

You can also use a web browser to search for a specific checklist or SOP you are interested in (you may find one already prepared or that you can easily customize).  Similarly, ask around your network of in-house lawyers – most are happy to share what they have.  Lastly, Practical Law (Thomson Reuters) and Practical Guidance (Lexis/Nexis) each offer many ready-made checklists covering lots of different topics and are crafted with in-house lawyers in mind.  Though, in my experience, the best checklists are always the ones you make yourself.

*****

So, there you go.  All the behind-the-curtain magic of checklists and SOPs revealed.  But, as you can see, they are nothing special, maybe even a little boring but damn if a good checklist cannot save your ass when things start piling up and your hair is on fire.  It is so easy to forget something or feel like you cannot delegate the task.  A checklist can give you confidence that you have not overlooked anything important or, better yet, that you can delegate work and know that it will get done correctly.  That is a very nice feeling.  Checklists are productivity super juice.  So, pour a big mug full and drink up!

Sterling Miller

November 30, 2023

It’s hard to believe but we are starting year ten of “Ten Things!” Thanks for sticking around for the journey.  We still have a ways to go before we park the Ten Things Mystery Van and throw away the keys.  I am also making a lot of progress on the new book, so hang in there.  My fifth book, Showing the Value of the Legal Department: More Than Just a Cost Center is available now, including as an eBook.  As the ABA says, “So many checklists!” You can buy it HERE. 

Two of my books, Ten Things You Need to Know as In-House Counsel – Practical Advice and Successful Strategies and Ten (More) Things You Need to Know as In-House Counsel – Practical Advice and Successful Strategies Volume 2, are also on sale on the ABA website and on Amazon (including as e-books). 

I have published two other books: The Evolution of Professional Football, and The Slow-Cooker Savant.  I am also available for speaking engagements, webinars/CLEs, coaching, training, and consulting.

Connect with me on Twitter @10ThingsLegal and on LinkedIn where I post articles and stories of interest to in-house counsel frequently.  

“Ten Things” is not legal advice nor legal opinion and represents my twisted views only.  It is intended to provide practical tips and references to the busy in-house practitioner and other readers. 

If you have questions or comments, or ideas for a post, please contact me at sterling.miller@sbcglobal.net or at smiller@hilgersgraben.com.

[1] In fact, most of my “Ten Things” posts are essentially checklists if you think about it. 

[2] At the risk of getting smacked upside the head again, I am going to use checklist and SOP interchangeably here.  And I say that with all due respect, Dave.

[3] Yes, these are the actual titles.  Fortunately, the title of a checklist doesn’t require much imagination, and the more literal the better.

[4] All writing is better when you use the active voice.  If you are not sure about what I am talking about, here is a good article on the difference between the active voice and the passive voice: Active vs. Passive Voice.

[5] See How to Conduct Incident Response Tabletop Exercises for more on this topic.