This is the first of a planned series of three articles on the design of Feesability.

We've spoken elsewhere about our view on the current processes involved in litigation costs budgeting and why we believe they have to change. It's in order to propel that change that we created Feesability. Feesability is more than an application that helps you to plan and compile litigation budgets – it's an application designed to establish new standards and promote new processes.

The task to design the interface of Feesability is intrinsically linked to an understanding of how these new standards and processes can be translated into a goal-oriented and user-friendly environment.

A B2B-application with a peer-to-peer logic
The first and in many ways most important decision in the design process was the choice of platform. We wanted an application with a small footprint and a low threshold, which is why we decided to build a web-based application as opposed to a desktop software product. In addition to facilitate sharing and collaboration, the web provides a scalable environment and easier implementation of updates – and you are not tied to a stationery, wired, device. When taking the decision on platform, every argument for a desktop solution was out-weighed by options available through current web-based technology. 

We think the recent crop of web-based productivity applications and the new generation of smart devices have created a new awareness among professionals that translates into a certain expectation. We now expect and demand our tools to be as simple, easy-to-use and functional as any consumer product – and rightly so. Why should our office applications look like Windows 98, be full of illogical idiosyncrasies that force us to work in counter-intuitive ways and often make us refer to an instruction manual?

Our basic premise when starting to conceptualise the application was that a new tool for litigation budgeting must aim to meet the expectations and demands mentioned above. It must be an application that feels easy, intuitive and pleasant to use. An application that doesn't need a thick instruction manual or 'wizard' to guide you through the set-up, but one that makes use of common and well-established interface patterns. Our mantra during the interface design stages soon became "the Application is the Wizard".

Crafting a tool
Our decision to build a web-based application had repercussions in the sense that the already existing prototype (1), while serving as a reference in terms of features and functionality, to a large degree had to be completely reconsidered.

In addition, our approach meant that the focus shifted from the processing of data to the experience of working with the data. "How" the user interacts with the application was regarded as having the same importance as "what" the user is inputting. We believe that's the way to think about a tool; if a tennis racket doesn't feel right in the hand, its strings are too loose, the shaft too short, or the balls bounce too low, you can still play a game of tennis but your experience of playing will suffer.

Wire-framing processes

Armed with some good understanding of the requirements of the application – based on the existing product, interviews and user stories conducted by the programming team – we set about work on basic wireframes to give shape to the core processes of the application. We translated ideas quickly sketched on paper into schematic illustrations to define the basic interactions and interface elements of the application and identify recurring design patterns.

The look and feel
Using the wireframes to identify common screen templates and interface patterns, we proceeded with producing a limited number of screen designs to start defining the feel of the application. While wireframes often tend to feel too abstract to non-developers, the screen designs provided a good reference for feedback at this stage. When they started feeling solid and provided the necessary amount of information, we next coded a static prototype in HTML and CSS (2) in order to test the validity of our interface ideas so far before programming of the application logic began.

A very important aspect of the application was the output of well-formatted report, and a lot of effort was put into developing a coherent language for them. We designed a multitude of different types of reports in InDesign before coding HTML/CSS prototypes that served as templates for the end-product PDFs, which are rendered on demand through the application. 

Goal-oriented design
The core of Feesability is built on the idea of using standardised codes for describing Tasks and Activities. While not necessarily immediately obvious to every new user, we believe the processes introduced in Feesability will soon feel familiar and intuitive. Every effort has been made to create a goal-oriented interface that guides the customer to best practices while speeding up the process of compiling budgets.

Design credits:
Interface design, wireframes, and design templates: Fredrik Jönsson, Ummocrono
Reports design: Nina Wollner, Ummocrono
Interaction Design, Ruby on Rails programming: Matt Ford, BitZesty
 

Notes:
(1) The original Feesability application was a desktop software developed by Feesability co-founder Dan Tench back in 2000. It was programmed in Visual Basic and enjoyed some limited use in-house.
(2) Cascading Style Sheets (CSS) is a style sheet language used to describe the presentation semantics (the look and formatting) of a document written in a markup language.

Costs management is felt by many to be the one key Jackson proposal that will be implemented swiftly.  Even under existing case management powers, courts are increasingly embracing costs budgeting, especially in larger cases.

A very recent example is in the group action brought by 70 Columbian farmers against a subsidiary of BP for damage to crops and farmland allegedly caused by the laying of the OCENSA pipeline.  Senior Master Whittaker has in that case ordered both sides’ solicitors (Leigh Day and Freshfields) to prepare costs budgets and to update them on a monthly basis.

Costs estimates have of course been an increasing feature of litigation for some time.  However, they have yet to become authoritative or reliable.  There are many reasons for this, including to some degree the inherent unpredictability of litigation.

The central problems though are of both form and (lack of) common methodology.  Too often over the last two years I have found myself in costs-capping applications trying to compare apples with oranges.  The rather amorphous nature of estimates and bills of costs as currently submitted also creates difficulty in comparing estimates with actual costs incurred on a like-for-like basis.  This is particularly felt in the majority of cases that do not reach trial when there is no easy way to disassemble an estimate to trial to show how it properly compares to the costs incurred up to settlement or other early disposal.

Thus despite the current Costs Practice Direction (“CPD”) requiring solicitors to provide an explanation on assessment if an estimate have been exceeded by more than 20%, unless the case concludes at trial the court cannot tell easily the extent to which an estimate has been exceeded.

As ever, the devil is in the detail, and the major obstacle to costs management is the absence of a consistent system of identifying cost categories from estimate to time recording through to assessment.

Solicitors tend now (and in part are required under the CPD) to set out estimates and prepare costs claims grouping items by activity (eg drafting, attending, telephoning) rather than by the tasks to which those activities were directed (eg , preparing a witness statement, compiling client's disclosure documents).  Unfortunately this leads to most estimates and bills of costs being opaque and uninformative.

Having looked closely at the Uniform Tasked Based Management System (“UTBMS”), which was developed in the mid-1990s and is used widely in North America, it became clear during the Jackson review that a more logical form of grouping is based on task first and activity second.  It is also useful to further group tasks into a smaller number of "phases" or "aspects".  If each set of related tasks is attached to an aspect (e.g. the aspect disclosure might be formed of the tasks including client's disclosure, opponent's disclosure, inspection etc) there is immediately a higher level available for measurement, comparison and analysis, allowing a view of the wood rather than the trees.

 A standardised set of tasks would enable an estimate to be prepared, time and other costs to be recorded, and a claim for costs to be prepared and then assessed by reference to such tasks.

In his final report, Lord Justice Jackson endorsed the three-tiered Aspect/Task/Activity approach (see Ch. 45, para 5.6) so that “costs information can be extracted at different levels of generality”.

Developing an agreed standardised set of tasks is thus key to this process and will need to cater for all parties to the litigation, whether they be claimant, defendant, respondent, interested party or others; and all types of litigation, to include for example normal Part 7 claims, Part 8 Claims, and appeals.

Most solicitors now record time spent on fee earning matters on sophisticated practice management systems ("PMSs"), but they invariably employ a very unsophisticated set of activity descriptions.  In order to facilitate the approach that the senior judges want, a means must be found to record for each time entry the task in respect of which the work in question was undertaken.  This is a challenge that should not be beyond legal technology but before that, an agreement over what generic task descriptions should be is the next logical step on the road to implementation.

It's important to us at Feesability to establish a simple price-banding structure that will be proportionate to usage levels while maintaining a liberal approach to the number of users who can log in under a single account.

Here are some of our thoughts -  we would be very pleased to receive comment from potential users and other interested parties.

In the context of our costs-budgeting application we focus initially on the person who will have primary day-to-day conduct of a case. And by a case we mean a civil dispute (non-family) that would be allocated to the multi-track if reached that procedural stage.  Hence a case would include anything from a serious personal injury to a £ multi-million commercial dispute.

The person with day-to-day conduct might or might not be the client partner but is the one who would be primarily responsible for compiling a costs estimate (and for whom we hope Feesability will become indispensable)

We would like to compile data on the number of cases that person could have active at any one time.  The better informed we are on this issue over the next two months the more transparent our pricing model can be when we launch.

So please let us know what your numbers are, individually or within your department or firm.  Likewise we would be interested in reviewing any independent data that may be out there on caseload.

Feel free to comment on this blog, on twitter @Feesability or by email to info@feesabilityhq.com

An Integrated Approach to Costs Management

Introduction

1.1           This paper sets out a proposal for an integrated approach to costs management in civil litigation from estimating, through time recording to budgeting review and assessment.  It is believed that if such an approach can be achieved, this will bring great benefits in terms of:

(a)            increased accuracy and clarity of costs estimates to litigants which can inform them in the decisions they make in respect of any piece of litigation;

(b)            providing meaningful costs estimates, schedules and bills of costs to the court so that cases can be managed efficiently and proportionately; and

(c)             where the actual costs vary from the estimate, allowing litigants, their lawyers and the courts to see clearly where the variations have  occurred .

2.              Problems

2.1           Estimates have been an increasing feature of litigation for some time.  However, they have yet to become authoritative or reliable.  There are many reasons for this, including to some degree the inherent unpredictability of litigation.

2.2           The central problems though are of both form and (lack of) common methodology.  The rather amorphous nature of estimates and bills of costs as currently submitted creates difficulty in  comparing estimates with actual costs incurred on a like-for-like basis.  This is particularly felt in the majority of cases that do not reach trial when there is no easy way to disassemble an estimate to trial to show how it properly compares to the costs incurred up to settlement or other early disposal.

2.3           A major obstacle is the absence of a consistent system of identifying cost categories from estimate to time recording through to assessment.  This proposal seeks to address that problem.

2.4           Solicitors tend now (and in part are required under the CPD) to set out estimates and prepare costs claims grouping items by  activity (eg drafting, attending, telephoning) rather than by the tasks to which those activities were directed (eg , preparing a witness statement, compiling client's disclosure documents).  Unfortunately this leads to most estimates and bills of costs being  opaque and uninformative.

2.5           A more logical form of grouping  is based on task first and activity second.  It is also useful to further group tasks into "phases" or "aspects".  If each set  of related tasks are attached to an aspect (eg the aspect disclosure might be formed of the tasks including client's disclosure, opponent's disclosure, inspection etc) there is immediately a higher level available for measurement, comparison and analysis, allowing a view of the wood rather than the trees

3.              A standardised set of tasks

3.1           Central to the approach proposed in this paper is to identify a standardised  set of tasks (ideally specified under the CPR) for each piece of litigation so that:

(a)            the estimate can be prepared;

(b)            time and other costs can be recorded; and

(c)             the claim  for costs can be prepared and then assessed;

by reference to such tasks.

3.2           Only with such a standardised set of task descriptions can an effective comparison be made and any proper analysis be taken between:

(a)            the comparative costs (whether estimated or actual) of each party; and

(b)            the estimated and actual costs of a single party (for example to assess the reasonableness of costs claimed and to improve the estimating process for the future).

Developing an agreed standardised set of tasks is thus key to this process.

3.3           Such a standardised set of tasks will have to cater for:

(a)            all parties to the litigation, whether they be claimant, defendant, respondent, interested party or others; and

(b)            all types of litigation, to include for example normal Part 7 claims, Part 8 Claims, judicial review and appeals.

3.4           For convenience (for example to facilitate time recording by reference to the standardised set of tasks), each task will be ascribed a standard code.

3.5           There is some tension between a set of tasks optimised for estimating and a set optimised for time recording and assessment of actual cost.  In respect of the former, it is necessary (or at least useful) to identify specific and discrete tasks in respect of which the fee earner can anticipate the likely amount of work involved.  The more generic the task descriptions, the harder it is to calculate a reliable estimate.

3.6           By contrast, with time recording, where the task has to be identified with each item or work undertaken, overly specific task descriptions become burdensome and it can be difficult to determine properly into which task a piece of work can be properly placed.

3.7           Accordingly, a unified and standardised set of tasks to cater for estimating, time recording and assessment of costs must represent a balance between these competing requirements.

3.8        

4.              The proposed approach

4.1           It is proposed that costs management in litigation proceed through the following steps.

(a)            Preparation at the outset of the case a plan and estimate on the basis of standard (or at least common) assumptions and standardised task codes

(b)            Disclosure of estimates and assumptions to the other side and the court

(c)             Consequent case management by the court

(d)            Fee earners on the case (solicitors and counsel) record time by reference to standard task codes

(e)            Periodic review throughout the case of actual cumulative costs incurred to date and if necessary a reformulation of estimates

(f)              On any costs awards, a review of the costs sought against the estimate

(g)             A review at end of the case of estimates against actual costs with a view to informing and thereby improving the reliability of estimating in future.

Preparation of a case plan and estimate

4.2           Estimating the likely costs in litigation remains at present somewhat haphazard and can be unsophisticated.

4.3           For the reasons outlined above, it is suggested that the following steps be adopted by a party to a piece of litigation in respect of an estimate.

(a)            The party identifies the assumptions in respect of which the estimate in prepared.  In time these assumptions, as developed in practice,  may too become standard

(b)            The party prepares a case plan and costs estimate.  The estimate will set out the anticipated amount of time expected for each fee earner on the case and other costs to be incurred for each relevant standardised task in the case.  For larger cases It is advisable to use appropriate case planning software for this.  Ideally, reports should be produced which not only set out the likely costs for each task in the case, but also an estimated monthly cost of the case going forward.  This provides a useful and early check for the client as to whether actual costs are exceeding the estimate.

(c)             The assumptions and the estimate are submitted to the court and other side, in the first instance at the initial case management conference.

4.4           A number of steps can be undertaken to improve the accuracy of an estimate.  Setting out at an early stage the assumptions on which the estimate is based is useful in this regard.  However, other guidance can be given (which may in time be  built into the case planning software), based on experience, to improve the accuracy of the estimate.

Time and cost recording

4.5           Most solicitors now record time spent on fee earning matters on sophisticated practice management systems ("PMSs").  In order the facilitate the approach suggested in this paper, a means must be found to record for each time entry the task in respect of which the work in question was undertaken.  This is a challenge which should not be beyond legal technology.  Many PMSs have available spare fields for data entry.  Alternatively, PMSs invariably allow for a text narrative field for each time entry.  This can simply be used to enter the code for the task immediately before the usual time recording narrative.  For example:

"4.2 Attending with Graham Smith in preparation of his witness statement."

4.6           Counsel also record time with some form of narrative.  Again, this could be recorded by reference to the standardised task codes. 

4.7           The alternative to recording this information pro tem, is for there to be a retrospective allocation of work done to the different tasks on the case.  This is likely not only to be less accurate but also more time consuming - adding an unwelcome layer of expense to the process

Periodical comparative review of cumulative actual costs to date with the estimate

4.8           At periodic intervals, as determined by the court, it will be necessary to compare the cumulative actual costs to date with the estimate.  If the approach set out above has been adhered to, this becomes a largely automated process and meaningful analyses can be quickly and efficiently produced.  At Appendix [], there is a sample comparison of estimate vs actual.

4.9           It is outside the scope of this paper to consider

(a)            the appropriate frequency of this periodic comparative review (whether on a solicitor/client basis or between the parties and before the court); and

(b)            the consequences of any material discrepancy between estimated and actual costs

Assessment of costs

4.10        Where there is an assessment of costs after an award of costs, one factor which should be taken into account is the comparison, on the basis of the standardised tasks, between the estimate and the actual costs incurred.  This will plainly be of the greatest application in respect of full detailed assessment at the end of the matter.  Whether this approach would also be at all applicable in respect of a summary assessment of costs or a detailed assessment in respect of part of a matter (for example, where detailed assessment is ordered in respect of an interlocutory application) is perhaps something which can be kept under review

4.11     

4.12        The developing use of information technology ought over time to enable many of these more sophisticated documents to be generated as reports from either bespoke software, reconfigured PMSs or popular office productivity applications. 

Highlight of our week was meeting Liz Harris of Harris Costs Lawyers (www.harcosts.com)

Liz was over in London attending the Legal Spend Management Conference (http://www.legalspendmanagement.co.uk/Event.aspx?id=245114&mac=LGIQ_Events_Title_Listing_2010&utm_source=legaliqonline.com&utm_medium=iq_partner&utm_campaign=iq_eventlist&utm_content=text&utm_term=eventpage_titlelink)

Feesability seemed highly suited to the burgeoning market for legal spend consultancy in Australia, while Liz's creative approach to costs management went way beyond simple pricing models - this too could translate well to the UK market.

Encouraging.  Very encouraging all round.