The associate in-house counsel stares at the four binders on the conference room table containing the case plans, budgets, and reports prepared by thirteen outside law firms profiling the company’s litigation cases. Each firm has prepared forecasts and case plans following the company’s Litigation Guidelines. Four of the cases are coming up for trial, others have expert disclosure and dispositive motion deadlines. Next week, General Counsel needs a report on how each case will be managed in the months ahead, but as she sits down to reconcile the status of each case, and assess the billing statements of each firm against plans, she has a hard time sorting out exactly where things stand, as what she is looking at seems to bear little resemblance to the case plans received months ago. Where to start…?
The role and responsibilities of in-house counsel managing the company’s litigation have intensified in terms of scope, pace and reporting requirements. Further challenged by staff reductions, budget constraints and inadequate resources, it is more difficult than ever for in-house counsel to make effective decisions in real time, in active collaboration with trial counsel that will maximize the value of litigation resources. As a start, companies develop detailed “Litigation Guidelines” for engaged counsel, outlining expected case performance - case plans, staffing models, budget forecasts and estimates; and other specific rules of engagement on how to retain experts and vendors, and procedures to obtain settlement authority. Most law firms engaged in commercial trial practice are well familiar with such policies, and operating criteria, and do their best to operate within their requirements as they litigate the case. At the very least, it is a plan – a platform of communication that starts inside counsel, and its retained firm, off on the same foot in managing its litigation. In matters of complex litigation, however, rapidly changing events in cases, and fluctuating priorities on in-house counsel budgets and resources can cause the case plan to become outdated, or overlooked, as the activities and deadlines of the case accelerate. If there is a failure of regular and efficient communication between corporate counsel and the outside trial firm, case management can revert to responding to one crisis after another. The result is missed opportunity, increased expense, and a lack of direction by the company over its litigation.
Beyond the platform that Litigation Guidelines provide, a much more realistic, practical, and effective approach is a litigation management plan that sets clear expectations of the partnership between in-house counsel and its retained firms at the outset, relying on frequent and regular communication between the two to make the best decisions in real time, responding to events as they unfold as a case is brought toward trial.
In my experience in partnering with corporate counsel managing complex litigation plans, I’ve consistently noticed a few key events, tasks and techniques that make or break the success of litigation management. This article will summarize where to put the focus – and what to expect from your trial firm in meeting your management objectives.
1. Establish The Relationship/The Rules/The Communication Model.
The Company’s Litigation Guidelines, reporting forms, case plans, forecasts and budgets do not manage the case. At best, they provide an important platform for regular, efficient communications between the in-house attorney and trial counsel. Adherence to the Guidelines should result in proactive preparation, notification, deadline management, and controls on expense and costs, but unless reviewed, discussed and revised regularly to serve as a shared understanding between the parties, the Guidelines will not be much help. Too often the required case plan, budget or forecast is prepared, but remains on the shelf or unused. The key to an effective and cost-sensitive relationship is direct personal or telephone communication, preferably pre-scheduled, brief (15 to 20 minutes per session), and without requiring elaborate agendas or extensive participation by the firm’s team members. These personal conversations are most effective if set at a regularly reoccurring time or interval (e.g., every other Friday 9:00 a.m. EST). Email communication can be used to highlight targeted issues, or to fill the gap of the occasionally cancelled conference. But the key is to have the conference, avoiding the temptation to keep costs down on the case by not engaging the time of the senior firm litigator in regular, targeted case planning discussions.
2. Focus On The Key Stages Of The Case.
No matter the subject or nature of the case, it is likely the critical management and strategic planning that will control it, will target the following events or stages:
a. Establishing of the case plan. (Day 0-30)
i. Selecting the forum, dealing with removal, state or federal court.
ii. Jurisdiction, counterclaims, motions to dismiss.
iii. Getting control of the documents – litigation holds, planning, electronic discovery.
b. Determining the core discovery plan. (Day 60-90)
i. Identify key company personnel to be deposed and who will prepare them.
ii. Selecting and retaining key experts.
c. Timing and targeting dispositive motions. (Day 90-180)
d. Managing settlement opportunity and methods. (Day 180-250)
i. Obtaining adequate authority.
ii. Using mediation – selection of mediators.
e. Final pre-trial hearings and preparing for trial.
3. Pay Attention to Who’s Doing What?
Ideally you want your lead, experienced trial lawyer providing oversight, direction and tactical planning, delegating tasks as possible to the team. Effective litigation management does not, however, result from trying to drive all tasks or activities on the case down to the lowest hourly rate. It requires a careful assessment of what tasks, events, hearings, and discovery roles require the lead experienced litigator in order to achieve an acceptable result. Here are examples where the experienced lead trial lawyer should be handling the matter.
• Attending key structuring hearings or conferences with the Court where the shape, pace, duration, and procedure flow of the case are set.
• Preparing key company witnesses for their depositions. It is likely more important that the lead lawyer handle the preparation than the actual defense of the deposition.
• Selecting, interviewing, preparing key experts to provide their opinions and to defend their depositions.
• Handling key hearings with the Court in the run-up for trial. This may include dispositive motions if oral argument on motions is likely to be decisive.
Much of the rest of the pleadings, briefing, arguments on discovery issues, exhibit selection and organization for trial should be in the hands of experienced subordinates reporting to lead trial counsel. The key factor in the efficiency and success of the team will likely be driven by the extent to which that team has substantial experience in actually taking cases to trial. If you’ve hired the right team and they are good at it, they will know the scope of their individual authority, check in with the trial lawyer leader and adjust continuously to stay on course in an efficient manner. Lead counsel should be reporting to you and be able to describe the team activity and immediate priorities in each of your regular conversations. Your role within your company is critical to coordinating personnel, adjusting appointments and scheduling as changes result, obtaining missing documents, handling technology demands or retrieval of information, all at the rapid pace of modern commercial litigation.
4. Plan for Deadlines for Obtaining Corporate Authority.
Efficient litigation management is crippled by ponderous corporate decision-making or inability to obtain authority for case action or settlement. The pace of commercial litigation is fast. Court deadlines are often inflexible, and the inability to obtain corporate authority to hire vendors or a key expert, and get them up to speed to disclose their opinions by a date in the structuring order, is not merely an inconvenience, it can be dispositive to the case. The turnaround to authorize key expenses, hire vendors, determine the role or possible witness status of key company personnel, handle press releases, range from hours to days, but hardly ever weeks. Obtaining essential settlement authority and the participation of key management in settlement negotiations cannot wait for a convenient opening in the officer’s calendar. Corporate counsel needs to be informed by the trial firm as to upcoming events, deadlines, and provided enough lead time to juggle the schedules, demands on company time, and do all of that in light of the pace of the case. Planning for these issues is critical and part of the routine communication process.
5. Demand Risk Assessment from Outside Counsel.
Litigation is full of risks, uncertainty, and unanticipated developments. Yet you are hiring professionals who handle it for a living and should be able to marshal their experience and knowledge to not only inform you of upcoming events, but assess your odds of succeeding as the issues are confronted. Many lawyers hate making those assessments, hedging their bets at all costs. The good ones express their opinions, set out the rationale, and execute on the plan after the company and the firm have made the decision on how to proceed. They need to inform you on their best judgment and assessment of the risk and will trust you to be fair and understanding if the outcome is different, or bad. Truth be known, they will worry these decisions and assessments endlessly, but recognize that you are paying for that judgment and are entitled to receive it. It’s become somewhat fashionable for trial lawyers to brag in their website bios on how they’ve never lost a case. Experienced top notch trial lawyers lose cases, and someone who’s never lost one probably settled the hard ones short. Alternatively, their luck may be about to run out. Develop the trust and communications with counsel to encourage sensible and realistic assessment and determination of risk, and reward that trust with understanding, support, and regrouping, if the outcome is not perfect.
6. Selecting Your “Local Counsel.”
A common model in handling complex litigation is for corporate counsel to hire a lead litigation firm, sometimes from the national market, relying on that firm or lead counsel to select a local lawyer or a local firm in the case jurisdiction to assist in navigating the personalities of the courthouse, unique local rules, or to bring a hometown tone to hearings and trial. But the days of the lead lawyer delivering to local counsel the brief at 4:55 p.m., requiring signature without review, and immediate court filing, are over in most jurisdictions. Judges impose on the local firm they know and trust, a supervisory role, requiring the local lawyer to set the tone of the case, police attorney civility, and coordinate the participation of the entire legal team in the manner that the judge commonly demands in his or her court. Selecting the firm at the local trial forum to represent your company in conjunction with the national or regional firm is a key decision – be part of it, do not defer or default to the fact that the local lawyer was in the law school class of your lead trial attorney as reason enough to hire that person.
7. Prepare Your Public Relations Team.
Most corporate Litigation Guidelines require public statements, press releases, and media appearances be handled by the company’s media department. Handled well, with good local connections with the reporters and local officials, and conducted at the lightning pace that press response and “meeting deadline” demands, this is an excellent policy. Is your company actually set up for that type of informed, fast, and savvy response? Your outside counsel should anticipate press interest or response, advise on preparing press releases to deal with contingencies, and coordinate communications on case developments to permit the trained public relations professionals to do their job. Many companies in substantial litigation are ill-prepared for this pace and quality of response. “Efforts to reach ABC, Inc. were unsuccessful” is hardly a comforting end to the story about a case development on the evening news. Establish a media response plan, identify key media to contact or target, and presume you will have one to three hours of response time to deal with major developments in the case.
8. Manage the Tone, Civility and Professionalism of the Case.
In-house corporate counsel should play a key directing role in setting the expected level of aggressiveness, and intensity to be brought to the handling of the case. Some cases demand tough, inflexible time limits, and sometimes hard-nosed positions to protect important legal rights and positions. But many do not. In any case, the Rambo, “scorched earth” lawyer, or taking extreme positions, simply to show toughness or to punish the adversary, no matter the issue, is usually a liability to a good outcome and invariably increases the expense of the case. Establish your expectations on granting extensions of time, rescheduling due to illness or unforeseen events, and discussing your expectations on maintaining appropriate level of civility in the language used in briefs. Demand professionalism and civility from your legal team, but do not accept cronyism. When making decisions on accommodating requests, live by the rule – “what goes around, comes around.”
9. Delegate Review of Routine Documents
The pace and demand of briefing legal issues continues to accelerate. All memoranda and briefs are not equally critical and many in-house counsel do not review at all the routine legal briefs and memoranda that support motions or requests for action by the Court. They rely on experienced tested trial counsel to get it right and argue the case effectively in the presentation to the Court. Yet those same corporate counsel will commonly flyspeck settlement demands, reports to the Board of Directors on the litigation, extensively revise mediation statements, and will require that the opening statement to be presented at trial be rehearsed and vetted in a three-hour moot court. And they should. Documents that profile the company’s position, expense, or inform corporate leadership require in-house counsel review and adequate time must be anticipated by outside counsel to enable your review of those documents. By contrast, a reply brief on a motion to dismiss probably does not. You will set the expectation as to the level and frequency of review that you will require, and it will vary, but in any case, if you determine to review the draft brief, it most likely needs to be completed in 24 to 48 hours.
10. Manage the Three Next Critical Events in the Case File.
The goal of litigation oversight is to establish a comprehensive plan and achieve it, but the reality is the flow of a complicated case presents a daily or weekly array of a large number of events, happenings, deadlines, and decisions. You cannot devote equal time to managing all of those events for each of your cases. Focus on the three critical events or deadlines that are confronting the case on each of your cases in the litigation portfolio. Make these events the subject of your phone conversation regularly conducted with outside counsel. As the call ends, ask counsel to be looking forward to anticipate the events that should be addressed next month. Require outside counsel to look beyond the headlights, advising you of what is coming around the next turn, and when it is going to confront you.
Companies go to a lot of trouble and expense in establishing Litigation Guidelines. They can provide an effective platform for organizing and planning for corporate litigation. But the case plans and budgets they generate are no substitute for targeted, regular communication with outside trial counsel. Focusing on the events and priorities noted above should enhance corporate management of the company’s litigated cases.
Bruce Felmly is the co-chair of the Litigation Department of McLane, Graf, Raulerson & Middleton, P.A. with offices in Manchester, Portsmouth, and Concord, New Hampshire, and Woburn, Massachusetts. Mr. Felmly is a trial lawyer with over 40 years of experience, handling complex business litigation. He is a Fellow of the American College of Trial Lawyers and a former President of the New Hampshire Bar Association.