Putting Process Back into Service of Process

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Annie: Hello, everyone, and welcome to today's webinar, "Putting the Process Back Into Service of Process." My name is Annie Triboletti, and I will be your moderator.

So joining us today is Paul Matthews. Paul is the Director of Product Management at CSC. In this role, he leads CSC's Litigation Management Operations team, which is the team that's responsible for handling all service process received by CSC. And with, that I'd like to welcome Paul.

Paul: Thank you very much and welcome, everyone. We appreciate you spending some time with us this afternoon. Just to start things off with a quick run-through of what we're going to be covering today.

Today we're going to talk about the ingredients of good process and why it's important to have one in place for handling service of process in your organization. We're going to start off with just some definitions on some basic terminology, make sure we're starting on the same page. Then we'll talk about some of the outcomes that we need our service of process workflows to achieve. We'll discuss the importance of predictability in these workflows. We'll dig into the elements that are fundamental to any good process. We will then talk about what happens when things go wrong and what we can do when that happens. And then we will also talk about the benefits of making all of this someone else's problem whenever you can. And then we'll wrap up today's session. As Annie mentioned, there's a demo of our direct SOP intake portal.

So let's go ahead and dive in. As I mentioned, before we get too far into things, I want to make sure we're working with a shared understanding of some of the basic terminologies that will come up frequently during today's session.

So to start, we're going to talk about service of process. Remember these are the basics, so I fully expect that everyone on the call today knows what service of profit is. Obviously, if you don't, it's a little odd that you decided to join our session today, but we welcome you either way. I want to specifically differentiate between sort of the standard textbook definition that you'll see at the top of slide here and a more practical understanding the work gets lumped in under this heading when we talk about service of process for corporate entities.

So in addition to the kind of traditional summonses, a plural word that always sounds strange to me, summonses and complaints, we're going to also include things in our discussion today like substantive pleadings that occur before an attorney has entered appearance as well as documents related to subpoenas, wage garnishment, bankruptcy, foreclosures, and a range of other legal demands.

When we talk about service of process today, it's that wider, broader definition that we'll be using. So just to kind of keep us on shared ground that's the way you should think of it as we talk about it today.

The other phrase you're going to hear me say a lot today is registered agent. So when I refer to a registration today, I'll be talking about the individual or the entity that's designated to receive service of process on behalf of another entity. And mostly I'm going to be talking about what would be referred to as commercial service providers, and even more specifically I'll be talking from the standpoint of CSC as such as a commercial service provider.

Okay. So with that understanding, let's go ahead and dive in. So every good process requires a target, a set of preferred or required outcomes that everyone agrees to. And over the last 20 years, we've had the opportunity or I've had the opportunity to work with hundreds of organizations of different sizes and shapes to understand exactly what they need to happen when service of process is made on their organization, whether that service of process occurs through the registered agent or whether it's occurs directly on some physical location within your organization, so whether that's a corporate office, a retail location. Service of process can happen in a lot of different ways, and it's important to have an understanding of what's going to happen in your organization when that happens.

So while every organization has some of their own nuances and depending on their profile in terms of volume and complexity and the type of service of process they're receiving may be a little different, but I think generally speaking it comes down to a handful of critical elements. The first, you've got to get the document to the person that needs to take that initial action. So depending on the document, it may be something that's almost transactional, like a subpoena or a garnishment, or it may be the beginning of what will become ongoing litigation. And in most organizations those are different jobs and very different groups of people that will handle each.

The transactional items will likely fall into an already defined and repeatable process in most organizations. But everything else will need to go through some of these other steps, which would be initially reviewing the document as it comes in and trying to understand the specific risk associated with that for your organization as well as the obligations you have so that you know not only what the document is about, but what you need to do in response to it. And depending on the type of document, that could be something very simple or something very complicated. And in either case, you want to make sure you understand and have an idea of what those things are for your organization.

Part of the determination will be to figure out, again if we're talking about litigation, part of that determination is figuring out if it's something you're going to engage counsel for or handle in-house, and that can depend on a lot of different factors. But again, someone very early on in the process needs to review the document and make that assessment so that you're basically putting this on the track for the right part of your process.

And then, at the end of the day, for every document, whether it's this transactional kind of quick disposition items or something that's going to be more long-term and complex, like litigation, you need to make sure that again you understand what you need to do in terms of responding to that document and making sure that that response is in the proper format and done within the appropriate timeline.

And on paper, we can represent this with a couple of quick bullet points, and it all seems easy enough. But the reality is it can get a lot more complicated and you can often feel like you're herding cats to make these very simple things happen. Again, that's especially true if you don't have a solid process and plan in place and if that process and plan has not been broadly communicated to everyone who's going to be a part of that process.

So once we understand the targets of the process, the next thing we really want to talk about is the importance of predictability. The human brain and corporate law departments, they may have a lot of things in common, but one of those things is an extreme prejudice towards predictability. This is why legal operations as a concept and those that ply this trade have become so highly valuable in most organizations, and it's also why we build processes at all. We're trying to sort of trade the cruel twists of fate and chance and random occurrences that can happen for a predictable range of outcomes that we can live with.

So what we have on here is a kind of high-level representation of the SOP life cycle and specifically the front end of that life cycle. There's lots of things that happen beyond this, but I want to kind of juxtapose two very different versions of this experience. So we're going to talk about the kind of distinctions between what happens in what I'll call the best-case scenario, where the document comes in through your registered agent, hopefully a professional and highly competent registered agent, we'll call them CSC for the sake of discussion today, versus the alternative, which is where documents come in through less predictable points in your corporate structure. So again, that could be a retail location. It could be your corporate office.

These things happen and they happen certainly less frequently than documents coming in through your registered agent hopefully. But when they happen, again you still have to have some kind of plan because what happens for a lot of organizations, and this is based on some specific real-world scenarios that CSC customers have shared with us and they're usually sharing those on the heels of a fairly catastrophic mishandling of SOP within their organization. They're talking to us about those things because they've had a negative outcome, so a default judgment or some other version of that, where the simple mishandling because the people who got the document didn't know what they were supposed to do, didn't know if there was a plan and if so what that plan was.

And so what becomes very evident, as you kind of look at this slide hopefully, is what you have at the top end of the slide are the documents coming through a commercial agent, where they're basically guided through a well-designed and well-controlled process, which was built to be purposeful, repeatable, and predictable. From the receipt to scanning to processing to delivery, every step has been meticulously designed to ensure the specific outcomes that, in CSC's case, required by our customers. Whereas the documents that arrive unexpectedly in a place where people have better things to do or at least other things to do as sort of their core responsibilities, it's really difficult to even guess what will happen if that hasn't been a specific point of focus for your organization.

So we're going to talk a little bit more about like what makes up a good process, but again this sort of represents what happens when there's a loose or ill-defined process. And so obviously you want something that's dependable, purpose-built, and kind of ready to serve, which is again what you'll get in the top portion of this slide.

So again, we've talked about the importance of predictability. What I want to do now is kind of take a step back, and we're going to actually talk a little bit about what goes into building a good process and not just a service a process related process, but just good process in general. And again, the things that are important I'll use some of the same adjectives that I used earlier. You want a process that is reliable, repeatable, and more than anything useful, meaning it achieves what it's what it's aiming at. So let's dig into that a little bit more.

So in preparation for today's session, I read about 114 articles, white papers, blog posts, and manifestos quite honestly describing the critical elements of a well-designed and successful process. And then I decided what the world really needed was a 115th opinion on that topic, but I've at least boiled it down to this single infographic suitable for framing or printing and posting on your cubicle wall or whatever the modern equivalent of that is, whether it's making your Teams or Zoom backgrounds.

And anyway, as I mentioned before, any good process is going to start with targets. It's something that has been agreed to, well-defined, and again everyone is sort of pointed in that direction. So you've got to start there because that's really going to tell what your process should be pointing at.

Once you've figured out the target or targets for your process, you need to start thinking next about how you measure your progress toward or your distance from those outcomes in some kind of ongoing way, so it a metric, a measure, a KPI or OKR, I think that's the latest and greatest version of that term, whatever you call them, they're necessary. You may have to wait until you're a little closer to having the whole process up and on its feet before they can be finalized, but you need to start thinking about this as part of the design process. So understanding what is going to be important to measure will also maybe influence how you build your process.

And then, speaking of building your process, eventually either you or your legal ops person is going to at some point want to open up Visio and start putting together a process diagram. Obviously they get extra points for swim lanes and points deducted if there are links to secondary and tertiary processes. And the reason for that is you want your process to be as kind of simple and sleek as you can make it because as you start complicating a process, especially if you're adding unnecessary steps, what you've got to keep in mind is that every handoff you have in the process, every kind of person you involve, they've got to be bringing value to the process because otherwise all you're doing is adding another failure point. And the goal of any good, efficient process should be to remove those failure points from the process unless it's an absolutely necessary portion of the process. So again, you've got to be thinking with that in mind as you design your process.

Next, you've got to sort of understand the context that your process lives in. Processes live within an ecosystem, and you need to understand all the players, contributors, and stakeholders in your ecosystem for this process. And then you need to make sure that they all know their role and agrees to that role in the process. So whether they are in a position of just oversight or whether they have an active role to play, they need to know that they need to perform according to that expectation because your process is built on that expectation. And so, again, they can't be surprised by their role and you can't be hoping that they're going to be an active participant. It's got to be something that's kind of sewn into the fabric of the process itself.

And one of those roles and probably the most important role for any good process is ownership. Someone has to be accountable for the outcomes of the overall process and for each step along the way. Some organizations will refer to that as having a single neck to wring. Basically, there's got to be a person, and it's got to be a person and not a group because a group of people can't truly be responsible for something because there's too much opportunity for any member of that group to say, "I thought you were keeping an eye on that," or, "I thought someone else was handling that." So it's fine for there to be many people involved in a process, but the people involved in that process, there's got to be someone who is making sure that those people are executing on the process. There's got to be someone who, when the process goes wrong and all processes will go wrong at some point especially when you're first building them, but you've got to know who's going to be looking into it, who's going to take ownership for understanding what went wrong, refining the process and making it better for the next the next go-round.

And then I have this listed at the bottom of the slide and that's only because I think it's the natural kind of foundation quite honestly for all of this is understanding that good processes need to be well-resourced. And well-resourced doesn't mean you need a thousand people. Whatever the number of people you need for the process, you need the right people in the positions, and you do need the right number of them. Good processes don't live on vapor. You need to understand the scale of your process and what it takes to make it run. And then if you don't have those resources, if this is a critical process, you either need to fight for those resources so that the process has what it needs to run, or you need to redesign your process to run on less.

And there's lots of different ways to solve most problems, so you've got to understand resources as an important ingredient of that, so you need to understand how big, how complicated your process can be based on the resources you anticipate having available to execute on that. So that can be a really tricky thing these days. There's a lot of organizations that are trying to contract or trying to have single individuals kind of cover more than one role. The more that that happens, the less people have bandwidth to support things, so you've got to be thoughtful about that when you're designing your process as well.

All right. So again, that'll look nice in a frame on your desk or just anyplace close at hand so you remember these things the next time you're designing your process.

Okay. So I said before that what we make processes for is to kind of satisfy some primordial need for order. And again, the reason that that's sort of woven into the human experience and therefore the corporate law department experience and all of our other experiences, we crave order because we know that failure is painful. And so if it's important enough to be thoughtful about a process, it's important enough to make a process that's going to work. But the failure is a part of it, and so we've got to be thoughtful about how failure plays into this as well.

So when we talk about failure in an SOP context, we are typically talking about three kind of big categories for how things can go wrong. So the first is typically the incorrect thing is done. So again, this often links back to the document arrives on the desk of a person who doesn't do this all the time, doesn't know what the correct thing to do is. Even if they're trying their best and they're doing what they think is reasonable, unless there's a plan that they're following and unless there's a process that's kind of built in to kind of control for this, that's a big opportunity to for things to go wrong. It's just the person is going to do what they think is reasonable, but that might not be the right thing for that document or for service of process in general.

So that is definitely something to be mindful of. This is one of those things where if there are things you can do to steer some of your SOP volume away from those places where a person who's not experienced, they're not trained for this is touching that document, if you can steer things towards more experienced resources or more appropriate resources, then again you can save yourself a lot of headaches and a lot of these failures. So part of your process should be trying to control that aspect of it.

The next category is it's not that the wrong thing is done, it's just that the right thing was done too slowly and specifically too late. So we'll talk in a moment about what that can mean in the context of service of process. But this is where maybe the right person or the right type of person was on the receiving end of the services of process, but they just didn't understand the urgency. They didn't understand how critical it was to move that document through the process quickly because anyone who deals with a service of process or litigation or anything that kind of surrounds that topic, one of the things you're aware of is that everything has got a due date. And every minute or day you're using to move something through a process is a day you don't have to plan your response and plan your strategy to try to steer things towards one of the better outcomes that are available to you. So again, lost time is a failure in this process, so that's something to be mindful of.

And then the last thing on the list here, the last thing that someone can do wrong is they can just do nothing. The document comes in, and no one does anything. The document doesn't land with a thud, but instead a quiet whisper, and as it lands in a rarely-checked bin on a desk that no one sits at anymore. And it's absolutely crazy how often this is the case that the person who handed the document, when it was served, doesn't immediately know what they're supposed to do with something, so they plan to figure it out later, but they just don't. And it doesn't seem to matter what organization we're talking about it. No organization is immune to this because on any given day in any organization a person who doesn't know what to do with something may be the person who that gets handed to. And again, the best thing you can do is try to make it easy for them to find the right thing to do.

So in service of process terms let's understand what happens when these failures occur. So again, worst-case scenario when service of process is not responded to, what you're looking at is a default judgment. And default judgments, they can be annoying because maybe the plaintiff had no case or you know you could have settled for far less than the default judgment.

And in some cases, like it can be a reputational issue either within your organization or for your organization. It can just simply be embarrassing because you lost a lawsuit not because the facts weren't in your favor, but just simply because what is going to look to the outside as incompetence. The document came in and you just didn't respond to or you just didn't respond to it on time. And obviously, that's not a good look for anyone. That's not a look that anyone enjoys.

And defaults can also be like absolutely debilitating because when critical SOP documents don't get handled, don't get put into the right hands, the impact is kind of indiscriminate because no one is carefully evaluating the risk and then deciding it's okay to screw this document up. In most cases, that could be any document on any day. So a default can cost your organization hundreds of dollars, thousands of dollars, hundreds of thousands of dollars. If you're feeling especially brave after today's session, I invite all of you today go out to Google and just put into your search bar "largest default judgment award ever." And you want to be sitting down when you do that.

And then, even if the failure we're talking about is not an outright failure, but only a delay, so you still answered, you answered appropriately, you answered within the time allotted, but maybe it didn't get into the hands of the people deciding on strategy early enough for all of the options to still be on the table. So maybe you wanted more time to try to negotiate, or maybe you wanted more time to gather facts before responding. And there's lots of different opportunities for that through the life of litigation. But everyone wants the widest possible range of options when they're choosing a defense strategy. And so, in this case, all of that time is valuable and good process matters because it's what's going to make the path between intake and that decision-making and strategy setting. It's going to keep that path as short as it possibly can be.

And I've said it a couple times already, and I'll say it again. There's no process on this planet that is immune from failure. When failure happens, and it will happen, it is our collective responsibility, if we're owning a process, to make sure we take advantage of those failures. All process design, at least initially, it's predicated on hypotheticals and the best information we have available at the time. But failures are based on actual real-world problems with your process, sort of that moment when the rubber meets the road. So you have to make sure you examine those failures and understand them and refine your process based on that understanding.

It costs a lot to have those opportunities, those failures, so you have to make the most of them. Going back to that notion of any good process has to have ownership, it's whoever is sitting in that seat that's got to make sure this is happening. Again, the failure is going to happen. You're going to make your way through that individual portion of or that individual incident. And most of the time we'll come out the other side, but what we want to come out of the other side of this is a better understanding of where we need to add a control to our process or where we need to remove a handoff or figure out what went wrong and if that's likely to be repeated. And that's what you can get from failure. Obviously, we want as few failures as possible, but any that we have, have to be learning experiences.

All right. I kind of mentioned this when we were going through the agenda. One of your best options a lot of times is to make all of this complicated process building and management and oversight and failure learning, make it someone else's problem. So building a good process is hard, and it's time consuming to manage and it can be expensive. And again, even good processes fail, but they especially fail when they're not put into action regularly. So if you don't get to practice and can execute on a process, it kind of withers on the vine. So in some cases, your best option is to trust the experts because that expertise is hard won and it's the result of constant repetition, constant reexamination and refinement of a process.

As mentioned before, a commercial registered agent, like CSC, we have to build a process that can withstand not just an SOP document, but literally thousands of documents every single day. So to do that, it requires that we have purpose-built technology, we have highly-trained staff, and we also have the critical controls in place that are necessary to keep everything on the tracks. And it is a full-time obsession for organizations that do it well.