Checklists and Process Design
What do surgery and lawyering have in common? On the benefits of checklists in the legal profession
What do surgery and lawyering have in common?
An unhappy answer is that failure often occurs in the mundane, not in the dramatic. In law, they generally don’t happen in the “novel point of law” or the heroic moment at trial. They fail because a routine step was missed, deferred, mis-communicated, or performed out of sequence—under time pressure, amid interruptions, and sometimes with the false confidence of “I’ll remember later.” This pattern repeats across knowledge work, and throughout the modern world.
A famous example in combatting these sorts of errors is the World Health Organization’s (WHO’s) Surgical Safety Checklist.1 It provides nineteen prompts at crucial stages of the surgery, designed to prevent “common, deadly and preventable problems [that occur] in all countries and settings.” A study on early versions of the checklist found that implementation reduced the chance of complications by over a quarter and nearly halved patients’ post-surgery mortality, saving seven lives for every thousand operations.2
Using the low-end estimate of surgeries performed globally in 2004,3 this equates to over one million annual deaths which could be avoided by use of a relatively simple, document-backed process.
The relationship between mistakes, systems, and brain power
Some lawyers think their intellectual capacity is the primary value-driver for their client: analysis, advocacy, interpretation, strategic judgment, and—occasionally—pushing the law forward. This is lawyering-as-substance.
And then there is lawyering-as-procedure: the disciplined operation of complex social systems that cannot talk to each other without translation. Courts, registries, limitation regimes, service rules, escrow protocols, corporate filings, disclosure obligations, undertakings, trust accounting—the machinery of civil society.
The facts in both of these domains are analogue. Human. Messy. But the work of lawyering-as-procedure is specifiable. It is a series of steps that must occur, in a certain order, by certain times, with certain proof. And this is exactly the kind of work checklists were built for.
And it is where many preventable errors live.
B.C.’s Lawyers Insurance Fund annual report data makes the point clearly.4 In that dataset, failures in “simple oversights” were the single largest cause of claims (42%), followed by communication (20%), legal issues (19%), and engagement management (12%). Oversight failures include, predominantly, failure in lawyering-as-process5: mistakes that could have been avoided through “an effective, firm-wide system;” “a careful review of relevant file material;” or a system that made sure we didn’t “forget or overlook some step that needs to be taken.” This is not universal truth for all jurisdictions, but data from other jurisdictions roughly agrees6 and provides a strong signal about what actually goes wrong in everyday practice: lawyers generally aren’t lazy, thoughtless, or inattentive.
It may be tempting to consider such failures as failures of the lawyers themselves: if they had just “thought harder,” “worked harder,” or “obsessed more about the file on evenings and weekends,” these things wouldn’t have happened. On this point I would posit that generally, this attitude (1) is a major contributor to our profession’s high levels of burnout, substance use, and mental health issues,7 (2) is unhelpfully reductive, and (3) misallocates blame.
My view is that to create a healthy, sustainable, and dare I say more future-proof profession, the goal shouldn’t be “figure out how to navigate the system,” the goal should be to “create better systems.” We should obsess less about brilliance, and more about designing reliable, streamlined processes. We should be able to expect the leaders of the profession—including in firms and at the regulator—to support us in the practice8, not throw us in the deep end.
Checklists are not “training wheels.” They’re cognitive infrastructure.
Aviation has understood this for generations. Checklists are not commentary on a pilot’s intelligence. They are an engineered response to human limits: distraction, interruption, fatigue, task-switching, and the simple fact that memory is not a trustworthy storage device for deferred tasks. Aviation has spent decades studying how and why checklists break down, including problems like omitted items, interruptions, and design flaws that invite error.9 This is because in aviation, like in medicine, checklists are safety-critical systems.
This is the point lawyers miss when they treat checklists, and office procedure more generally, as “basic.” This is also what firm leadership is missing when they repeat the all-too-common refrain that lawyers and staff should be allowed to practice in the way they prefer, rather than “imposing” standardized processes to support them. It sounds like kindness and accommodation, but it’s actually a failure in leadership.
Sustained cognitive work (read: “lawyering”) doesn’t just make us tired. It can change the kind of decisions we make—pushing us toward defaults, lower-effort choices, or less consistent judgments.10 11 12 In that environment, externalizing routine steps (via well-designed checklists and workflow) is not about “dumbing down” professional work. It’s about preserving cognitive bandwidth for the decisions that actually require expertise.13
Workflow-native checklists
Not all checklists work the same way. Read-Do and Do-Confirm checklists are common patterns, but law increasingly could use a third (or hybrid) category: a workflow-native checklist. This checklist is not a separate document, but a series of steps (and checks) embedded into the system you work in—your practice management platform, your document automation, your e-filing workflow—so that steps are prompted, sequenced, assigned, time-stamped, and auditable.
Healthcare has been moving in this direction. A simulation-based study14 comparing an electronic ICU rounding checklist to a paper version found the electronic checklist reduced provider workload and errors, with no time penalty. While this is not exactly a workflow-native checklist, it's an analog that provides useful early evidence.
Systematization risks
There are two main traps in checklist implementation:
- A checklist won’t save (and can embed) a bad process.
- A checklist can result in “checklist autopilot” or (more commonly) “checklist fatigue.”
The first point is self-explanatory, but a significant benefit of a checklist here is that creating it makes process issues explicit, so that they can be fixed.
As to the latter point, a major issue in checklist efficacy is whether or not they are used correctly. In research, this is referred to as a “fidelity problem”: not completing checklists, or completing them without actually performing the items. This comes down to human resource management: training, hiring, and (potentially) firing.
More generally, checklist (and process) success is a lifecycle problem—conception, design, testing, training/implementation, and ongoing evaluation—not a one-time PDF. Increasingly, research also calls for checklists to be designed and iterated-on at the team level, to ensure they are a fit for their specific contexts.15 Although the WHO checklist showed great improvements, most checklists are not “one size fits all” and the WHO checklist itself anticipates being modified to better fit specific contexts.
Conclusion
There is (a lot) more to say on this topic, including diving into differences in systematization and resulting support between (for example) doctors and lawyers, how process design relates to firm competitive advantage and pricing, and ways in which this discussion reveals potential deficiencies in our professional culture.
For now, the deeper lesson is not “use a checklist.” The deeper lesson is that (1) a checklist is an invaluable tool in ensuring adherence to good process, (2) checklists help design good processes, (3) checklist and process design are iterative, and (4) no matter how well-meaning, intelligent, and well-trained we are, as experts, we are still mammals.15
But we are mammals who can (and should) use tools and our intellect to modify and more effectively interact with our environment—in short, to engineer solutions to our problems.
This article was largely inspired by The Checklist Manifesto (Atul Gawande), which if you've gotten to this point, you should definitely read.
1. “Implementation Manual WHO Surgical Safety Checklist 2009,” World Health Organization
2. “A Surgical Safety Checklist to Reduce Morbidity and Mortality in a Global Population,” Haynes et. al.
3. “WHO Surgical Safety Checklist,” Wikipedia
4. “2024 Annual Report,” Lawyers Indemnity Fund
5. “Oversights,” Lawyers Indemnity Fund
6. “2025 LMICK Annual Claims Report,” Lawyers Mutual of Kentucky
7. “Coming together to overcome substance use and stigma in the legal profession,” Law Society of British Columbia
8. I note the “Practice Checklist Manual” here, a joint project of the Law Society of British Columbia and CLEBC.
8. “Checklists and Monitoring in the Cockpit: Why Crucial Defenses Sometimes Fail,” National Aeronautics and Space Administration
9. “An integrative review on unveiling the causes and effects of decision fatigue to develop a multi-domain conceptual framework,” N. Choudhury, P. Saravanana
10. “Clinical decision fatigue: a systematic and scoping review with meta-synthesis,” N. Grignoli et al
11. “A neuro-metabolic account of why daylong cognitive work alters the control of economic decisions,” A. Wiehler et al
12. Checklists may also serve as asynchronous communication tools, and tools that spur important communication, between staff and the supervisory lawyer(s).
13. “The Effect of an Electronic Checklist on Critical Care Provider Workload, Errors, and Performance,” C. Thongprayoon et al
14. “More than a Tick Box: Medical Checklist Development, Design, and Use,” B. Burian et al
15. IYKYK
