The phrase "it's not rocket science" is generally used as an ironic means of asserting that the point or issue then under discussion should not be difficult for ordinary individuals-that is, someone who is not a rocket scientist-to comprehend. The implied converse, of course, is that matters which rocket scientists consider are inherently incomprehensible to the rest of us. This is not always so, however.

Following the explosion of the space shuttle Columbia upon its re-entry into the earth's atmosphere, the National Aeronautics and Space Administration appointed a blue-ribbon panel to study this man-made disaster. On August 26, 2003, the Columbia Accident Investigation Board issued its report. In it, the Board observed that complex systems generally fail for complex reasons and that it is therefore simply "wrong to reduce the complexities and weaknesses associated with [complex] systems to some simple explanation."¹

Thus, it "[t]oo often" happens that "accident investigations blame a failure only on the last step in a complex process, when a more comprehensive understanding of that process could reveal that earlier steps might be equally or even more culpable."²

As a part of its analysis, the Board therefore considered the cultural as well as the technical causes of the accident. The Board observed that "Organizational culture refers to the values, norms, beliefs and practices that govern how an institution functions. At the most basic level, organizational culture defines the assumptions that employees make as they carry out their work. It is a powerful force * * *."³ In fact, this powerful force played a powerful role in the loss of the Columbia. According to the Board:

"NASA's organizational culture and structure had as much to do with this accident as the external tank foam.* * * Unfortunately, NASA's views of its safety culture * * * did not reflect reality."⁴

In spite of the earlier Challenger disaster, which could and should have served as warning enough, NASA had once again allowed its dedication to the safety of crew and craft to be systematically overcome by numerous other considerations. Nor did the final "red flag," the knowledge within NASA that a piece of foam had hit the wing during takeoff, cause a full reorientation of priorities. The September 26, 2003, New York Times carried an article describing the repeated post-launch efforts of a well-regarded NASA engineer to obtain additional information about possible damage to the shuttle from other government agencies that were rejected by his supervisors. In fact, one of the supervisors told this engineer to get on with other things because he considered the request for additional information "a dead issue."⁵ This is language that only a plaintiff's lawyer could love.

Law firms also have cultures. And whether large, small or in-between, law firms are complex systems that do complex work under very demanding circumstances and with limited margins of error. My point, then, is not or at least should not be rocket science — when a disaster happens at a law firm, we too often focus only on the last dumb act by the last lawyer or staff member to touch the problem, and we too often overlook root or other causes of equal or greater significance. And when we set up systems to protect against the last dumb act, we often tend to overlook the circumstances that allowed the last dumb act to exist in the first place. In law firms as in space, culture can cause crises. On the other hand, the right culture can avoid them.

Consider, for example, a lawyer who agrees to represent someone who turns out to be a dishonest or otherwise unworthy client who subsequently sues the firm, causes the firm to be sued by third parties or simply takes off with substantial unpaid receivables. It is easy, after the fact, to blame this lawyer for not conducting greater due diligence before taking on the client, for not managing the client-lawyer relationship more effectively, or for not reacting to "red flags" that were or should have been visible along the way. In truth and in fact, however, it will rarely be the case that this last dumb lawyer will be the only one who deserves blame. And what's more, a firm that does not consider how its overall culture and systems may have directly or indirectly contributed to the problem, and that does not take steps to avoid a recurrence, will unquestionably run a higher risk that this sad and painful part of firm history will repeat itself.

In the wake of such a problem, the firm might well wish to ask itself at least the following questions:

Is our client intake/new business review system adequate? Are there additional steps that could and should be taken before a client is accepted, which would make it easier for us to detect and reject high-risk clients? Do we have the right people performing the client intake function and are they adequately compensated for saying "no" as well as "yes"? Even if we have the right people, does the firm allow them to be bullied by key partners or practice groups? If the particular problem in this case should have been caught but somehow slipped through the cracks, how do we avoid similar problems in the future? Have we ever mined our past data to see how we might improve on a going-forward basis?

Does our compensation system encourage or permit individual lawyers to take risks that are inappropriate from the firm's point of view? Does our compensation system, including but not limited to our hourly quotas or guidelines, lead lawyers who do not have enough work on their plates to take on work that they are not qualified to do and that should properly be handled by other lawyers at the firm? Alternatively, do our systems lead lawyers to overwork matters in a manner that either turns clients off or results in client refusals to pay?

What is the firm's general approach to "cowboy" or other errant lawyers? Are they treated as heroes? Do they occupy key firm managerial positions? Are they encouraged or allowed to ignore firm practices or policies that others must obey? Does anyone at the firm have responsibility to make sure that there is an appropriate matching between the work to be done and the skills of the lawyers selected to do it?

Were there points along the way when we collectively did see or could have seen what was coming and avoided adverse consequences? What, if anything, does the firm do when an account falls 60 to 90 days past due? To what extent, if any, does the firm monitor high-profile or other cases on an ongoing basis? Are lawyers encouraged to discuss difficult problems with others or is seeking assistance viewed as a sign of weakness?

Do we adequately encourage personnel who may be aware of a brewing problem to step forward? What would happen in our firm to a staff member, associate or junior partner who walked into a senior partner and expressed doubts about the handling of a particular matter by another senior partner? What do our staff members, associates or junior partners think would happen?

How can we improve the way we docket things? Do we have a firm-wide or centralized system, or is every lawyer on his or her own? What more could or should we do to make sure that all information that should be captured by our docketing process is in fact being captured? Do we double-check entries? Do we send adequate/any reminders?

Do we need better or clearer instructions to nonlawyers? If the key breakdown was not at the lawyer level but at the legal assistant, secretarial or mailroom level, were the responsibilities of these nonlawyers adequately explained to them? Do we need to build in a greater degree of redundancy or oversight to make sure that similar problems do not occur again in the future?

Why was this work only completed or only mailed so close to a critical date? Were the lawyers overworked? Lazy? Did we take on a "last minute" matter for a client that we should have rejected or should at least have staffed differently? Should we have a firm policy that except in specified situations, critical filings be made before, rather than on, the last day?

Or consider one further kind of disaster: an un-waived or inadequately waived conflict of interest that leads to a damage action for breach of fiduciary duty, an action for disgorgement of fees or a bar complaint. Once again, it is easy to say that the lawyer in charge "should have known better," but a thoughtful firm that cares about its future and its clients will not let the matter end there. The questions to be asked should include at least the following:

Do we have a user-friendly conflicts-checking system? Is it easy or hard for lawyers to get conflicts data into the system and to understand the results that the system gives back? Is help readily available for lawyers who may or do need it?

Does our system contain the necessary data? Do lawyers provide the names of clients (or adversaries) and pertinent related parties?

How difficult is it for a lawyer to make an end-run around the system? Can work on a file be started, or even completed, before conflicts checks are run? Before oral or written waivers are obtained? If the answer to any of these questions is "yes," what steps do or should we take to see to it that someone follow up on these matters? Is recourse available within the firm when a lawyer delays or refuses to contact his or her client to seek a waiver for the benefit of another lawyer and client?

Does the firm have workable and intelligible policies concerning when it will or will not proceed with or without conflicts waivers? Has the firm drawn, and recently reviewed, policies or practices to separate overly risky situations from safer ones? Are these policies or practices actually known to firm attorneys? What steps are taken to update the policies or practices as needed? To inform attorneys about recent case law developments? To see to it that new or laterally hired attorneys fully understand how we do things?

How well do we document conflicts waivers? Does the firm make form letters available to attorneys who wish to use them? Do the letters just say "this will confirm that you have consented" or do they address the substantive issues that underlie conflicts waivers? Is any time spent in review of the letters to see if the firm's lawyers actually practice what the firm's policies preach?

Where does firm management stand on conflicts issues and on ethics issues more generally? Do these issues get more than lip service? If not, why not? Given that compliance with conflicts and ethics rules often appears to take time and cost money, has management adequately stressed the positive benefits, in terms of business development and public reputation, that arise from compliance with the rules?

There is no way to avoid all risks in the practice of law any more than there is a way to avoid all risks in space travel. On any given day, any given individual or group of individuals can be deceived or can simply make mistakes. And on any given day, any given individual or group of individuals can become the victims of unforeseen forces that are truly beyond their control. Fortunately, however, most of the risks that lawyers face are neither unforeseeable nor uncontrollable. Or put another way, the need for effective and proactive risk management, and the steps that we have to take to implement it, are not rocket science.

Endnotes
1. Columbia Accident Investigation Board Report, p. 6 (August 26, 2003). The full report is available on the NASA website at http://www.nasa.gov/columbia/home/index.html.
2. Id.
3. Id. at 177.
4. Id.
5. James Glanz & John Schwartz, Dogged Engineer's Effort to Assess Shuttle Damage, The New York Times (September 26, 2003, Late Edition-Final), Section A, Page 1, Column 1)

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