Operational risks include:
1. Transparent processes - Processes that can be
clearly codified and measured. For example, compliance with rules of procedure,
local rules and judge rules not subject to reasonable dispute (e.g. Font type
and size, formatting of documents, citation rules, page limits, table of
contents and authorities rules, title page rules, paper and electronic filing
rules, time rules, service of process rules and the correct procedure for
completing court and other forms). These processes are easily offshored and
easy to have direct supervisory authority over.
2. Codifiable processes - Processes that can be
measured to some extent in terms of the quality of execution and most of the
work is codifiable (e.g. Conducting party research, correcting non-factual or
legal errors in case management, pleading, discovery, motion, trial and appeal
documents). These processes a lawyer can easily review and correct, and direct
the offshore provider not to make a found error again.
3. Opaque processes - Processes can be measured as
to the work to be done, but the quality of the output is hard to measure and
subject to personal lawyer judgment (e.g. Analysis of laws and court rulings,
drafting documents requiring fact and law discussions). Unless the offshore
provider has worked with lawyer for a long time and has adopted the lawyer's
thinking and writing process, these processes are
very
difficulty to measure.
An
offshore provider should not agree to do opaque processes for a lawyer unless
there is a "Draft Shell" clause in their contract whereby the
provider agrees to draft a complex document in a certain manner and the lawyer
agrees to edit and finalize said document without reprimanding the provider for
failing to satisfy the lawyer's analytical
and writing style.
Noncodifable processes - A Lawyer's mental processes or executive
functions[1]
as to a legal matter, which include opaque processes without the draft shell
clause.
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