EP 808- Book Report: The Checklist Manifesto

Episode Notes

Transcript

Speaker 1:

Welcome to Heels in the Courtroom, a podcast about successfully navigating law and life. Featuring the women trial attorneys at the Simon Law Firm.

Amy Gunn:

Hello, and welcome back to another episode of Heels in the Courtroom. I am Amy Gunn, and today I am joined by Erica Slater, Elizabeth McNulty and Mary Simon. Hello ladies. Hey, today we are going to talk about books and book reports. There have been numerous books that we have read and referenced and learned from over the years and wanted to share some of those with our listeners. I picked the checklist Manifesto, how to get things right, and this was a book written by Aul Gwane, who is a surgeon who was written in 2009. He’s also written a few of the books, one called Better and Complications. I read this book a number of years ago, largely, I think I read a book review of it or maybe listened to a podcast about it because he was a surgeon and because we do, and I do a lot of medical malpractice litigation, I thought this could be helpful to learn how ingrained checklists are in the medical profession.

And his view is that you need a checklist for just about anything you do in medicine, and he broadens that out to a lot of different professions, engineering, finance, those things. And I haven’t reread it entirely, but I can give a pretty good outline. And then at the end, I want to y’all be happy to know, I want to try to create a checklist on a particular issue that we see in our practice and see what we can come up with. So by way of background, the checklist manifesto, it’s got some philosophy, it’s got some psychology embedded in it, and basically it comes down to a few different things in science. And it is about human fallibility, right? What we’re trying to prevent is mistakes. So Dr. Gandhi digs down at the beginning and tries to figure out why are mistakes made, and there are a number of reasons for that.

He lists ignorance, which is really just not knowing things and ineptitude, which is knowing things but not applying that knowledge. And that part I think is what we really are trying to prevent, especially in a professional situation. We know a whole bunch of stuff. We’re not ignorant of how to do things, but based on circumstances and being distracted and all kinds of other things, we may fail to do things. And that he considers ineptitude. At the beginning of the book, he gives a little story about a conversation he was having with the surgeon who had a patient in the or it was a belly surgery. And as he’s performing the belly surgery, the patient loses the heart rate. The doctor has to keep his head about him and figure out what is causing this. And the first thing he thought of was a massive bleed, but he is got his belly open, but he sees no bleed.

Then he is talking to the anesthesiologist because another reason a hearken stop is that you’ve got an airway compromised. And the anesthesiologist says, everything is fine. The airway is clear. And they thought about a pulmonary embolism, a few other things, a lung collapse. And they went through these brainstorming on the spot, and finally the doctor, and he’s doing CPR and he’s trying to keep him alive. And finally the doctor said, did anything, was he given any particular medication other than anesthetic? And finally the anesthesiologist said, oh, yeah, I looked at the labs before putting him under, and he had low potassium. So I gave him a quick dose of potassium because really low potassium can cause a heart attack, but so can really high potassium. And so they dug the bag out of the trash and noticed that it was the wrong dose. They had overdosed him on potassium and they were able to give him additional medications. And the only reason the surgeon was telling this story is because why? It turned out it turned out.

But that sort of brought up the idea of if there had been a checklist in place, instead of wasting time with the brainstorming and the conversation back and forth, somebody in the OR could have pulled it up and gone 1, 2, 3, 4, and there would’ve been way less time wasted. And so then you figure out, well, how do I make a checklist? Where do I even start with the checklist? Another interesting part of the book was defining types of problems that exist in our world, either professionally and personally. He cites to two professors who study the science of complexity. Yes, that is a thing. Brenda Zimmerman and Shalom Berman, and they come down. There’s three types of problems, simple problems, complicated problems, and complex problems. Simple problems are like recipes, how to make bake chicken, how to make a casserole complicated. Problems are sending a rocket to the moon.

And I think that would certainly complicate the complicating issue. It’s a big step between the two of those. Yeah, I think so. I struggle with chicken. I’ve got a good recipe and then complex problems. And the example they give of a complex problem is raising a child. So I just don’t think a checklist is going to work for raising a child, but it certainly could work for a simple problem like how to bake chicken or even a more complicated problem, like how to send a rocket to the moon. So you start with is the problem, I’m trying to create a checklist for even able, does it lend itself to a checklist? And I think in our profession, the answer is mostly yes.

Erica Slater:

Are all three of those categories,

Amy Gunn:

Ones that checklists apply to? Do you know what I’m asking? Yes. And I’d say no. I think the reason for delineating these three categories is to point out that not every single problem can be solved with the checklist. And identifying the complexity of the problem will allow you to predict the success of a checklist in that circumstance. So he gives us a number of things to follow. And sort of on that point, there’s a part of the book that explains the difference between a good and a bad checklist, not necessarily a good or bad problem to solve, better good or a bad checklist as you’re trying to actually develop that checklist. And good checklists are number one, precise, number two, easy to use even under the most difficult situations. So that would be a real stressful situation, the or example we talked about. And then the third is provide a good checklist provides only the most important steps, so you’re not micromanaging every single thing. Now, the opposite of that are bad checklists. Bad checklists are vague and imprecise. They’re too long, they’re too hard to use. And this is my favorite. They treat the people who use them as dumb as they provide each and every step. So that to me is, again, you don’t need to micromanage every single thing. Okay, now you go to what makes a perfect checklist, and you shouldn’t be surprised. There’s a checklist for checklists.

Erica Slater:

Can I ask a clarifying question? Yes. You said an example of a simple problem is a recipe. Is the checklist part of that, the steps of the recipe, or is the checklist part of that? This is how you approach making a meal. In my head, I’m thinking like, okay, so we’re baking chicken. So you go through your recipe, you do this, that ingredients, whatever. But if you had a checklist for approaching a recipe, you would read the recipe first, collect your ingredients, prepare your ingredients, execute the recipe. You know what I mean? What’s the difference? That’s different.

Amy Gunn:

I think that the difference is what you want to use it for. So I think they’re both appropriate. I think they’re both checklists. The first one that you describe is how do I even get to the point where I want to make this chicken? What do I have to do? And so as you say, you got to buy the ingredients you have to. But I do think that a simple recipe includes those things. It includes what ingredients you need, what temperature to set the oven to, and the specific steps you take. So I’m thinking about the Blue Apron. I have Blue Apron meal service, and I don’t cook y’all, but I can follow a recipe. I feel real good about myself when I’m able to do that. That is made for dummies like me, that includes pictures, and it gives you the ingredients. So that part’s easy. It gives me the ingredients, and then it starts with wash the broccoli. Okay,

Elizabeth McNulty:

We should note that you’re married to an approaching gourmet chef.

Amy Gunn:

I’m the exact same.

Elizabeth McNulty:

That’s why

Amy Gunn:

You don’t cook. I can’t even, yeah, I know, I know. But I do feel good when it’s done, although I burn things a lot and I follow the recipe, so it’s got to be my oven. But we digress. So Erica, to answer your question, I think that the idea is a checklist is the recipe, and you implement these good and bad elements of a checklist. If you’re too detailed, it’s bad, but it should include the ingredients, what time to set the oven to, and those types of things. So then you say, you go on to what is a perfect checklist, and here are the rules for a checklist. Okay, there are seven. That’s kind of a lot, but we’ll go through ’em. You have to decide a pause point at which the checklist is supposed to be used. So you determine the time or the when of the checklist.

So for example, with a recipe, you might want to check it in the morning to decide whether you need to go to the grocery store to get the ingredients. Then the next step is decide whether you want a do confirm or a read do checklist. I know this is in the weeds, so let me help you understand that. I had to read on a do confirm list means that you have to pause and check if what’s going on the list has been done. So in the middle of that or experience, you have to pause and say, okay, did we do this? Yes. Did we do this? Yes. A read do list means you carry out the task as if you’re following the recipe, which is, okay, do this, now do this, now do that. So I think something in our area, which we’re going to do here in a minute, but I think with our protocols and procedures, we’re probably more like a do confirm.

That’s what I’m thinking, that we do a lot of things by rote. Everybody knows what to do when a case comes in or when something happens. And I think the best use that I can think of for a checklist be before something big happens, I got to make sure I did everything. So sort of a do confirm. Alright, number three, A checklist can’t be too long. It needs to be between five and nine items. I think that’s oddly specific. It sounds like maybe there’s some science to that, I don’t know. But we’ll go with them. Focus on the killer items, which are the items most dangerous to skip? So in our case, statute of limitations would be a killer item. Making sure that we communicate with our client things that can get us in trouble if we fail to do it. Number five, keeping the wording simple and exact.

That seems good. Number six, one page. Literally one page. You can stick it on the wall, look it on your phone, one page. It also says avoid unnecessary colors. I guess too many colors are distracting. I know you like colors and it says, use both upper and lowercase. I think we’ll have to see what that looks like. And then finally, test the checklist in the real world and keep improving it. So you can’t just write it and be like, here it is. Good luck to you. Follow this and everything would be great. You have to implement it. And a lot of things in life, it’s fluid, so you can’t be afraid to tweak it if a certain circumstance requires that. Okay. And then one of my favorite things it talks about, because I really resemble this, is checklists are not fun because they’re kind of boring and people can be lazy.

And that’s why I say resemble that, because I’m like, I don’t need a checklist. I’ve done this a long time, but I think some of it’s kind of ego. And the author says, what stops us from using checklists is it’s an embarrassment or a feeling that comes from deep inside. He says, we believe that those whom we call heroes, those who’ve achieved a lot, don’t follow the rules. They improvise. They’re shoot from the hip. And those are the people that we really admire. And he’s like, that’s great, but that’s how mistakes are made. So take your ego out of it. This is medicine. Say politics. This is medicine, and get your checklist done. So with your permission, ladies, what I thought would be fun is to try to follow those rules and put together a checklist for something that we do on a regular basis. So I’m thinking maybe we could do something kind of easy like steps to prepare for a mediation. Okay, I’m seeing some nods. Okay. Not a lot of enthusiasm, but that’s okay. That

Mary Simon:

Sounds good. I, because thinking in my head too is a checklist is for you are creating it for yourself

Amy Gunn:

And your team. Okay? You and your team. And so here’s the scenario. I’m walking into a mediation for a really important case that you believe likely should settle, and you’ve got trial less than a month away. So you’re at your best opportunity to, if it’s going to settle, this is the right time to settle it. So when I walk into a mediation in order to be prepared and to look like I’m doing the best job I can for my client, how do I get myself there? So the thing that immediately comes to mind, and I don’t think this is, we can probably tweak the order. He doesn’t give us any advice about whether the most important thing should be at the top or the bottom. So I guess we’ll have to figure that out. But I need to know, this is simple. I need to know what my contract is and what my expenses are and whether there’s any liens because the client is going to want to know

Mary Simon:

How much they’re putting in their pocket.

Amy Gunn:

That was beautiful. So if I walk in the door and I can’t answer that question because I don’t have my expenses printed out, that’s an embarrassment. So I’m going to say I don’t know what the right words for that are, but basically

Erica Slater:

Determine the economics.

Amy Gunn:

The economics

Erica Slater:

Or the numbers. Maybe that’s not specific enough

Amy Gunn:

Numbers, documents to calculate. I’m breaking a rule already. Too many words, net settlement. How about that? Something like that. We’ll work on that. Draft

Mary Simon:

Settlement allocation or something like

Amy Gunn:

That. Got it. Okay. Yeah. So that’s one. Anybody else?

Mary Simon:

I have client permission. I’m just going to rattle off things that came to mind. Client permission, confirm date, location, pick

Amy Gunn:

Mediator. Okay. I think I’m going to say I like the pick the mediator. Maybe also vet the mediator. I

Erica Slater:

Would say understand who’s attending.

Amy Gunn:

Okay, yeah. Who’s going to be there and

Erica Slater:

Understand who’s attending and their perspectives, meaning their money.

Amy Gunn:

Yeah. Are there many people coming? Yeah, because that’s a good who

Mary Simon:

Confirm authority.

Amy Gunn:

Yeah, yeah, yeah, yeah. Okay. Confirm authority, but also confirm that might be the same thing. Confirm authority probably is the same thing as confirmed limits, like policy limits or how much there’s going to be. If you walk in and you’re like, I need $10 million, we got one lady. You should have known that by reading the interrogatory answers. Okay, so confirm authority and limits, but

Mary Simon:

We don’t care.

Amy Gunn:

Yeah. Well, I know that’s our attitude. Okay. I’m thinking, I usually like to have a conversation with the client beforehand explaining what’s going to happen. So an informational phone call with the client, you don’t want them to get there and have no idea what’s going on.

Erica Slater:

And the most fun part of that is if you’re working with the same mediator over and over, what their spiel is that they’re going to give the client. And then you build rapport and trust by saying exactly what they’re going to hear. And then they hear exactly word for word what you’ve told them they’re going to hear and they’re like, wow, you knew it.

Amy Gunn:

What’s going on? Okay. What else?

Erica Slater:

Draft out your conditions.

Amy Gunn:

Do you mean as if in a little mediation summary at the end of the day or beforehand?

Erica Slater:

I think it’s important to understand what conditions based on the case, what conditions you’re willing to arrive at. So for example, if

Amy Gunn:

You

Erica Slater:

Will agree to confidentiality, that can’t be the last conversation of the day. That needs to be a conversation with the client early on if you’re going to agree to a certain payment schedule or are there things that are deal breakers for you? Yes, we’ll settle, but we need to have the money in 10 days. So if there are important considerations for that particular settlement, I think those have to be thought about beforehand and communicated to your client and the mediator.

Amy Gunn:

Agreed.

Erica Slater:

Or have a strategy for when you’re communicating those. So almost I think that’s the intellectual prep of a mediation. So

Amy Gunn:

Almost like deal breakers or requirements as you say, conditions. That’s very accurate. Okay. Draft conditions, case

Mary Simon:

Specific

Amy Gunn:

Conditions, yes.

Mary Simon:

Because that would also include a trust. If you need to engage someone, if a trust needs to be set up or,

Erica Slater:

Or a condition that comes up a lot is when they start putting annuities in front of you or something for your client. The condition is do not do that. If we elect to do that, we will do that. So that’s not part of the negotiation. That’s something that you’ll need to prep your client for and prep the mediator for. Don’t bring those in here.

Amy Gunn:

That made me think about the conditions. It made me think about liens. So in the first one, we talked about the economics of it and we talked about fees and expenses and liens, but I think liens deserves a separate point because you also don’t want to get into a mediation and say, oh, well there’s a hundred thousand dollars lien by Blue Cross Blue Shield. We think, I mean, we haven’t checked on it for a while, and I have no idea whether they’ll take a discount. I think there needs to be some homework done on the type of lien, whether it’s public or private. If you have Medicare or Medicaid, when’s the last time the lien was updated from those entities? So I think you need to know a little bit about the liens on the case. Yeah, maybe

Mary Simon:

As a separate one, instead of draft settlement allocation, just do a separate one that says Determine liens.

Amy Gunn:

Yeah, exactly. Again, not any particular order determine fees and expenses. That’s going to be one. And that’s sort of like a draft allocation. Determine liens or at least research liens I think is probably better. Three, make sure you’ve vetted your mediator. If it is somebody that you haven’t used before and that comes up occasionally, sometimes I’ll have defendants who, or there’s a conflict with one of our regular mediators, and I always like to say, I don’t care how you pick, no one’s going to tell me what my case is worth. But I say that sort of with a lot of hubris. But then I really do want to know what was this background of this guy? If this person was on or gal, if this person was on the bench, what’s the reputation? And I call around to people, maybe practiced in front of him or her and try to do a little bit of research. So vet the mediator, confirm authority or limits of policies. Five, have a phone call with the client on expectations and six draft conditions. And I think that’s

Mary Simon:

The only one we didn’t do was logistics actually.

Amy Gunn:

Yeah, I think that’s right. Logistics. Where am I going?

Mary Simon:

What format, where when, that type of stuff.

Amy Gunn:

Yeah. Okay. That’s seven. I like that. See, this is fun and easy.

Mary Simon:

Yeah, I like checklists.

Amy Gunn:

Good.

Okay. So listeners, I think that as long as it’s a simple problem, I think in our world, these checklists work. We’re not building a rocket, but as long as it’s a simple problem, you could easily go through those suggestions and create a checklist for almost anything. So let’s go back to see if we followed the rules, right? And I know we are doing this pretty quickly, but generally, so a pause period. Okay. I think we talked about this is something that I personally would want to do a day or probably actually at this point a week beforehand, it makes sense to say, okay, I’ve got a mediation a week from now. Have I talked to the client? Where am I going? Who’s the mediator? I think probably one week ahead of time. Makes sense.

Speaker 6:

I do think though, for your team, it would be important for them to be aware of it because there are things that they would need to do well in advance of just a week, like updates from Medicare or something. If those things hadn’t been done and it was a week advance, you wouldn’t have enough time to do some of the things.

Mary Simon:

And see, in my brain, I’m wondering is that even a different checklist of a, I know this is where my brain just spirals into checklist land because I’m thinking about expenses. Have you confirmed with your experts, you got all the expenses in or all the bills paid? We have, yeah. So it’s almost,

Amy Gunn:

How about this? How about when the mediation gets set on the calendar? It’s usually a few weeks out. Then the protocol is to attach the checklist to the calendar invite. Got it. And instruct the staff to be like, okay, check the checklist. Check the checklist now and see what needs to be done and start working on those things. That could almost be the automatic trigger, and then I attaching it to the

Mary Simon:

Calendar. That’s the redo part.

Amy Gunn:

Yeah, exactly. That’s the next issue. The read, do, confirm or read do actually you could do both of those. Yeah, with that list. All right. Five to nine items. We have seven perfection right in the middle. Perfect focus on killer items. I think we did that. I mean, there’s a lot of other little things that you have to worry about. Do I park in the garage? Who’s going to pay parking? I mean, we’re not going to micromanage simple and exact. Probably. I could work on that with a little more time, a little bit more pointed in the terms, but not bad. But not bad. Not bad. One page. Yes, ma’am. One page. No colors I don’t think. No colors, no. But I will use uppercase and lowercase. That just sounds grammatically correct. And then test it in the real world. I think that’s yet to be seen. And I’m going to do this. I’m kind of excited about this.

Mary Simon:

Our listeners are going to be dying for an

Amy Gunn:

Update. An update, and I’m going to forget all about it and be like, what we did that, that

Mary Simon:

Checklist for approaching

Amy Gunn:

Podcast. Exactly. Need one of those. For sure. I certainly do. Topic, any of our listeners who has anything in their life that you would consider to be a simple problem that you’d like not to make mistakes on or that you find yourself forgetting or just being distracted with life? I think that the checklist manifesto, how to get things right is a good book to sort of read. And more importantly, just get your mind thinking about checklists being important and useful.

Mary Simon:

Most of the times when I forget things that are in my regular routine, it’s because I haven’t taken the second to think about the fact that there is a checklist to it. So even thinking in my own head of the morning routine with my daughter and knowing Mark, and I just tag team everything, but we know what things have to be done. We know the outfit of clothes needs to be extra, one extra outfit in the bag, but if I don’t actually think about it, sometimes I forget it. If I’m not actually just taking one second to think about all the things that need to get done, I forget something every time. And it almost makes me want to do a checklist just for myself, an internal, it will take me five seconds, just sit there and be like, got it. Did all the things,

Amy Gunn:

Just hang it on the kitchen on the way out the door

Mary Simon:

Or something? Yeah, just for my own brain. Because part of this too, even sitting down thinking about steps in mediation, it’s kind of nice to have the checklist because then to your point at the beginning, whether it’s ego or embarrassment or whatever it is, the fact that it’s there is also kind of like when you know, have a million other things going on, whether at home or at work or whatever, it’s a nice, what’s the right word to lean back on a little

Erica Slater:

Bit. It’s a crutch. It’s a crutch

Mary Simon:

To do that.

Erica Slater:

So there’s several checklists here and there that have been passed around the firm, and there’s two in particular that I do use on a regular basis because you’re doing things so fast, and especially if you’re preparing for a deposition or preparing a client for a deposition,

I get so focused on the facts or the one thing that’s glaring at you, that’s an issue that you’re going to be dealing with in a deposition. And I’ll grab that client prep checklist sometimes and I’ll sit down with them and it’s there. And it’s so funny, you mention Amy, it makes you feel incompetent or whatever. I do this little disclaimer to my clients like, okay, I have this checklist here. We’re not going to follow it for me to go back later and make sure we’ve covered everything. And by and large, it’s like, we haven’t talked about what you’re going to wear because my brain is focusing on, I need to sit down and talk to you about this issue that you’re going to be asked about, and we’re going to spend 80% of our time on that because that’s really the only thing we need to get.

But if you forget to tell them, don’t wear jeans, that’s consequential. So I’ve used that type of checklist and it’s been really helpful. And the basicness of it is what makes it useful because it is universal to a case, because the author is saying, you trust that person using it, that they’re going to understand their own parts of, in this case, the facts of your case that need special attention. You don’t need a item that says, think about the issues in your case and address what the most important thing you need to prepare for is. It’s like, no, you just need to remember to tell ’em not to wear jeans.

Amy Gunn:

So on that same notion, the author says, sort of sums up the value of the checklist is the checklist gets the dumb stuff out of the way. The routines your brain shouldn’t have to occupy itself with and lets it rise above to focus on the hard stuff. And that’s what we’re looking for. We know what the easy stuff is, and if you write it down and just have it routine right there, then you can open your brain up to figure out really not what somebody should wear, but how to win the case. How to

Erica Slater:

Win. Exactly.

Amy Gunn:

Well, listeners, thank you for going on this journey with us today, developing our checklist. Hopefully you all might find some inspiration in this and put your own checklist together, whether professionally or personally. So thank you for joining us for another episode of Heels in the Courtroom. Our episodes drop every other week. We’ll see you next time.

Speaker 1:

Heels in the Courtroom is brought to you by the Simon Law Firm at the Simon Law Firm pc. We believe in the power of pooling resources in order to create powerful results. We often lend our trial skills and experience to lawyers around the country to achieve better results for their clients. Our attorneys welcome the opportunity to work with you on your case, offering vast resources, seasoned litigators, and a sterling reputation. You can contact us at 2 4 1 2 9 2 9. And if you enjoyed the podcast, feel free to share your thoughts with Amy, Liz, Erica, Mary Elizabeth at heels in the Courtroom dot law, and subscribe today because the best lawyers never stop learning.

Continue Reading