Beginning Before the Beginning
By Jennifer J. Salopek
In the description of their project named "Rethinking Square Zero," Express Scripts and co-Champ Husch Blackwell suggested that, while most projects begin at "square one," good legal project management begins well before that, before a new lawsuit comes in the door. Keeping that premise in mind, the company and the law firm began working together in 2012 to completely revamp Express Scripts' approach to managing litigation, when the company's litigation portfolio grew after a corporate merger in April 2012.
Prior to the merger, now Vice President & Deputy General Counsel Julia Brncic was the only in-house litigation attorney at pharmacy benefits management company Express Scripts. After the merger, Brncic then hired Urmila Paranjpe Baumann, formerly with Husch Blackwell, who became the second in-house litigation attorney. "The need for process and organizational efficiency was very real," she says. That focus spread to Husch Blackwell as the two groups worked closely together on the litigation portfolio.
Mila Baumann (ESI), Kendra Nowak (ESI), Julia Brncic (ESI), Sara Hellmann (HB), Chris Smith (HB), Allison Stoll (ESI), Angela Quinn (HB), Adam Fuemmeler (ESI), Julie Mills (ESI)
Over a short period of time, the team of two in-house litigation attorneys grew to three, but that was still not enough. Recognizing the need to leverage legal operations and legal project management, Brncic expanded the department in that direction rather than hiring countless attorneys. Kendra Nowak, who has been with the company for over seven years, joined the legal department in 2015 as director of legal operations.
Four in-house attorneys now handle every aspect of litigation for this Fortune 25 company, which earned approximately $100 billion in revenues in 2016, employs more than 26,000 people, serves 83 million patients nationwide, and processes 1.4 billion prescriptions each year. "Our group handles litigation matters that touch every aspect of this large business, from vendor contracts to very complex healthcare litigation," Baumann says. "The legal ops processes allow the attorneys to focus on the cases without being distracted by the necessary but time-consuming process details."
Beginning the legal ops journey with litigation was met with some surprise, says Chris Smith, a partner at Husch Blackwell. He notes, "Many in-house efficiency efforts begin on the corporate or contracting side. The decision to start with litigation was met with some surprise, because many people felt that litigation isn't sufficiently predictable for these approaches to be effective."
Beginning at "square zero," the team turned its attention to revamping its approach to litigation, with special consideration for how they had managed similar litigation in the past and what they had learned. They inventoried 16 years of previous cases to inform the resulting program, which includes seven key components:
- Process maps for litigation - operating procedures for repeatable tasks on matters, and detailed plans for specific litigation matters. They are built around ABA billing codes for better budget tracking and reporting and tied to stated expectations and guidelines. They also link to historic document templates and guides.
- Assignment maps and workstreams - track who on the team does what task, who is accountable internally and externally, and who is ultimately responsible.
- Automated budget tracking - using the same ABA codes as the maps and tied to quarterly litigation reports.
- Online collaboration portal - houses all documents and is accessible to all members of the litigation team.
- Playbook - the crown jewel of the project, an electronic repository that "takes the knowledge out of people's heads," as Smith puts it, and includes substantive resources on legal themes, references, statutes, and case law.
- Legal operations team - oversees legal project management, procedures, protocols, and parameters within the company and with outside counsel.
- Express Scripts PBM 101 - a training program that introduces outside counsel to pharmacy benefit manager business basics.
In the first years of their collaboration, the team decreased average spend by matter by 30 percent, aided by a decrease in law firm partner time by 20 to 30 percent. Improved legal outcomes are also part of the payoff: Express Scripts has broken its past record on the number of cases reported and resolved in the same accounting period, as well as significant cases resolved on dispositive motions.
The program is replicable by other companies if they apply the same principles, says Husch Blackwell's Angela Quinn, director of operations and strategic growth. "You must just take a step back, understand client needs, and create those maps so that everyone knows what their role is."
"The program is not only about cost savings necessarily," says Brncic. "Our litigation often requires very fast turnaround and deliverables. This program allows the team to deliver results under very tight deadlines; they produce the highest-quality work product at a moment's notice."