Delegation for IP attorneys: From trainee draft to dispatch-ready work product
You “know” you need to delegate, so the trainee can learn and you can do other things in parallel. But, you also know that when you do delegate, it is quicker rewrite their first draft and just get it out the door.
Avoiding proper delegation guarantees you won’t get as much of your own done, or you’ll be spending evenings and weekends catching up so you can meet every deadline and client request. And, the trainee hasn’t had an opportunity to learn and starts to rely on you to do the real work instead of applying their own legal knowledge.
This framework gives you a way to delegate to trainees and review their work in a more strategic and time-efficient manner which creates better learning opportunities for the trainee. Of course, there are times when deadline urgency trumps learning opportunities, but otherwise, by following this framework you can change your role from Copy editor to Experienced guide, and you’ll get trainee drafts to ready-to-send quality, while barely touching the text yourself.
You can read the detailed framework below, and also included is an easy reference flowchart to guide you through the process.
Phase 1: Before the trainee starts – A 5-minute brief
Most trainee drafts that are wildly off the mark are the result of insufficient guidance and discussion when initially delegating the work. Instead of simply forwarding an office action or client instructions to the trainee saying “deal with this”, communicate your expectations for approach, content, and timeline for the draft to be provided, before they type a single word.
Guidance that helps trainees prepare a better first draft includes:
● Define the commercial objective(s): What kind of client is it? What is their typical budget? What are their goals for IP generally and for this particular case? Who will be reading/relying on the output (both now and in the future)?
● Identify the key obstacle(s): Explicitly agree on the primary issues to address in the work. While all elements are important to include in drafts, which one or two are so crucial they deserve the highest share of effort e.g. specific prior art, breadth of scope, third-parties, evidence, IP office formal issues.
● Set output boundaries: Be explicit as to what work you want to receive; a full draft, an outline of key points and legal approaches, or a combination with a full draft relating to the key issues and outline on less important issues.
● Set a clear deadline: Give yourself enough time to go through the remaining phases of this framework after you receive the work. Estimate how much and add at least 25% more, it always takes longer to read than you think, more rounds of drafts are needed, or other urgent tasks come up. Communicate the deadline to the trainee with an explanation of the steps that need to happen (and the time this will take/your other commitments) after they provide the draft so they understand the need to meet the deadline.
Phase 2: When the draft arrives - Triage review
When we wait to review a trainee draft until we have time to do a detailed review and edit, we delay noticing how much work is needed to get to the end product. That delay can force us into taking action ourselves because we don’t leave enough time for the trainee to start again.
Instead, as soon as practicable, review the draft as a triage for legal and technical correctness in mind. In this phase, it is essential to ignore how it is drafted.
● "Hands-off": Read the draft once entirely without a pen in your hand or track changes turned on.
● Assess the content, not the presentation:
o Does the draft satisfy the relevant statute, case law and practice?
o Does the draft make technical and legal sense?
o Does the draft move the task towards a despatch-ready work-product.
o Does the draft meet the commercial objectives of the client?
● The Go/No-Go Decision: If the draft is legally or technically flawed, STOP reading.
o Do not spend time reading a fundamentally incorrect draft, let alone commenting on/editing the document itself.
o Skip Phase 3 and go to Phase 4 where you will return the draft with discussion of the fundamental flaws.
Phase 3: For the draft document itself – don’t line edit
The temptation when you have an ok(ish) draft to make the corrections yourself, especially with the ease of tracked-change editing. However, line-editing means the trainee learns nothing, they simply click “Accept” and the correction never passes through their brain. Instead, if you highlight problems and force them to solve it themselves, they build the skills and knowledge of a qualified attorney.
● Use Comment bubbles: Instead of rewriting incorrect passages, use comments to pose questions, highlight inconsistencies, provide your thoughts and outline alternative approaches. Be mindful not to provide replacement wording in the comment.
● Ask for the missing elements: Highlight what is missing, and what needs to be added, without drafting the text yourself.
● Stop "Red pen" formatting fixes: If there are systemic errors (formatting, grammar, spelling, language, antecedent basis etc.), do not waste time fixing them yourself. Add one comment at the top or on the first instance of the error, telling the trainee what the issue is and for them to fix throughout the draft.
Phase 4: Discussing the draft
It is extremely common for professionals, including IP attorneys, to want to avoid giving direct feedback about tasks that have been done poorly. We don’t like conflict, we want people to like us and we don’t want to upset them. As a consequence, we don’t spend time explaining what is wrong or could be done better; and we hide behind emails, messaging and comments in drafts in order to deliver “bad news”.
Failing to deliver proper feedback sets the trainee up to fail, they don’t understand what they did wrong or how to improve. Perhaps even worse, is they believe that because their supervisor hasn’t put in the time to give feedback, that they aren’t respected or thought to be capable of improving. Over time, these thoughts compound to cause a drop in wellbeing, productivity and drive the trainee to look for another job.
So, instead of misguided attempts to try to make everyone feel better by avoiding giving feedback, spend time discussing the areas for improvement in the draft and the reasons for your approach. In the same discussion, ask the trainee to describe their thinking process; you will pick up where their reasoning has gone awol, and where they need to focus their learning. Proper discussion, as opposed to dictating (literally or figuratively) the changes will stimulate deeper insights and faster learning, for both the trainee and yourself.
● Keep discussion focussed on the outcome and the big picture: Don’t review the document line-by-line together.
● Only outline fatal flaws after giving trainee chance to identify them themselves
● Ask the trainee:
o How can the Examiner challenge the selected approach? What are the relative strengths and weaknesses of these? How can we address ore prevent such a challenge (and when do we want to do that)?
o How does this approach support the commercial objectives of the client?
● Focus discussion on legally most important areas: especially in regards to language and tone revisions that you want to be made, then have them follow that approach through the rest of the draft.
● Hand back ownership: The trainee is responsible for implementing the changes discussed.
o If the changes are minor, then they can make them and submit a final version that is ready-for-despatch, even if it isn’t the same as you might produce yourself.
o If the changes are more substantive then the trainee must submit another draft and you restart at Phase 2 (triage review).
Implementing this review process
Implementing this process will feel awkward at first. Like everything, it takes time and practice to break an old habit and replacing it with a new one. There will always be occasions when deadlines overrule following the full process, but be disciplined in making the decision to “do it yourself” only when there is no alternative.
Keeping the learning of the trainee and the longer-term efficiency and profitability gains in mind can help you commit to this process, and crucially to return to it, if and when you lapse into the old approach.
This approach to delegation is one of many aspects of good supervision and leadership that IP attorneys are rarely taught. For more on delegation, and the many other crucial people skills needed to lead IP firms, I run an “IP Attorney as Leader” workshop series and offer individual trainings on the different people skills for IP
Download copies of this article and an easy-follow flowchart version of the process:
