litigation management: getting the most out of your trial team douglas brothers texas lawyer...

LITIGATION MANAGEMENT: GETTING THE MOST OUT OF

YOUR TRIAL TEAM

Douglas Brothers

Texas Lawyer In-House Counsel Summit

October 29, 2015

INTRODUCTION

Three essentials for managing business litigation

• Develop relationships with your trial team

• Establish clear objectives

• Establish incentives

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WHAT WE WILL COVER

1. Choosing a compatible lawyer who will focus on your business

2. Developing a solid, trusting relationship between lawyer and client

3. Setting clear business objectives

4. Maintaining focus on solving the business problem, not managing the process

5. Managing document review and analysis to limit costs

6. Setting incentives for on-time completion

7. Reviewing alternative fee structure options

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GOAL

• Cost effective representation that keeps your business objective at the forefront

• And ensures the client’s interests (not the lawyer’s) are driving the representation

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DEVELOPING RELATIONSHIPS

In summary

• Understand what you are looking for (skillsets)

• Relationships with existing firms

• Building relationships with other counsel

• Maintaining relationship during the representation

Purpose of the relationship in the context of litigation

• Mutual trust

• Weather the inevitable storms

• Ensure maximum effort and productivity

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Determine what you are looking for in a lawyer or law firm

• The obvious: trustworthy, reliable, competent, and honest

• Don’t want a “scare them and save them” approach

• Don’t want a “know it all” approach

• You are managing someone with greater litigation acumen, but that is secondary to your goals

• Want compatible personality types

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Someone who understands and is interested in your business

• More important than often recognized

• Subordinate her or his thoughts to the business needs

• Asks you (but doesn’t bill you) to understand the business

• Willing to discuss and reach agreement on the determined objective and incentive to get there

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Has the tools and the resources to solve the problem

• Substantive knowledge

• Resources

• Hold the firm to that

» Control staffing/control tasks

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Deepen and broaden relationships with existing firms and lawyers

• These are far and away your most important and valuable relationships

• Ways to deepen the relationship

» Explore their other practice areas

» Meet other partners at the firm

» Get to know their lawyers at other offices

• Meet with them periodically – even if you don’t need the services at this time

» Strategize about your potential problems (as part of the law firm’s business development function)

• Continue to deal with lawyers you trust even as they change firms

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Establish relationships with firms that do not currently represent you (before you need them)

• “Beauty contest” interviews after suit is filed is a bad way to select counsel

• Bane of in-house lawyers is incessant pitch from law firms for work, but identify several firms or lawyers who don’t currently work for you

• Reach out to them

• Use contacts/classmates etc. (a personal reference is key)

• Last place you want to be is calling up the plaintiff’s lawyer so you can get an extension of time to hire counsel

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EMPHASIS ON THE RELATIONSHIP WHILE THE MATTER IS ONGOING

At the beginning

• Discuss objective and incentive in building relationships

• Go beyond typical reporting (“where are we in relation to our goal?”)

Social and professional relationship

• Not just for the benefit of the lawyer

• But to get to know them like you would with a counter-party in a business negotiation

Litigation will test both parties; have a bond that can stand the stress

• And understand what makes that lawyer tick

• You will be a better manager for it – in good times and bad

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ESTABLISHING CLEAR OBJECTIVES

Corporate counsel spend too much energy making sure outside litigation counsel are actually doing the work they bill for

• And too little energy on making sure they are doing the work they should be doing

• Focus, instead, on what the lawyers should be doing, rather than solely on how they bill for what they do

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How do you know what it is they should be doing?

• Identify the business problem that the litigation poses, or is intended to solve

• Start with the end game. Determine a range of reasonable outcomes and strategize on how to get there

• Determine what tasks advance the ball toward that outcome

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Determine whether the key uncertainty is legal or factual

• And figure out how to best expose, develop, and address that key uncertainty

Determine whether there are any shortcuts to get there

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Once the risk or opportunity is identified, don’t lose sight of it

• Business litigation is (almost) never about the legal issues

• And it is never, ever about discovery disputes

• It is about isolating, or narrowing, the uncertainty, then moving to the end game

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Does this require cooperation, or at least rationality, from the other side?

• Yes and no

• It’s great if you have a rational actor on the other side, but the basic principles remain either way

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Rarely does document review, privilege review, or a discovery fight advance the ball

• And many litigation games need not be reciprocal

• For example, knee-jerk cross-motions to compel discovery; or taking every possible deposition

• Figure out what you need, and don’t worry about it being as onerous as what the other side wants from you

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THE NUTS AND BOLTS OF LITIGATION MANAGEMENT

ESI

80/20 rule or Pareto rule: 80% of the value comes from 20% of the content

• Probably understates the value and overstates the documents

Develop search protocols to catch the low hanging fruit

• See where you are after that; then decide whether a deeper dive is necessary or advisable

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Privilege Review

• On what you produce

• Set special rules for logging requirements

• Snapback or clawback agreements (beyond the jurisdictional requirements)

Paper discovery

• Use disclosures to shortcut costs

• Avoid requiring motions to compel on your responses – be complete the first time

Depositions

• Chart out the need with regard to the “objective” analysis; ask yourself: have circumstances really changed?

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Staffing

• Often a big issue but shouldn’t be

• Default rules:

» the senior lawyer takes the key depositions and presents the arguments at hearings

» a second lawyer is present for the same events

» a third lawyer is (almost) never necessary at depositions or hearings

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Motion practice

• Just because you can file a (meritorious) motion, does not mean you should

• Establish why the motion furthers the objective

Expert engagements

• Can be difficult to manage

• Cost management is key; consider a flat fee per phase

» e.g. consultation; document review and analysis; full report; deposition

Mediation/settlement

• Timing is everything

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ESTABLISH INCENTIVES

Three parameters can commonly be incentivized

• Result

• Time-to-completion

• Cost to complete

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ESTABLISH INCENTIVES

Result

• Contingency fee

• Bonus

• Blended rate – least favorite

Time to completion

• Flat fee

• Early completion bonus

Cost to complete

• Bonus

• More useful for standardized litigation

• Under budget reward/over budget penalty

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MANAGE THE PROCESS AND THE COST

Counsel must justify the task, not just the billing

• You can have policies against training lawyers on your files

• But massive document subpoenas and review have the same inefficiency

Use of budgets

• Budget per month

• Monthly amount

Do you feel that each month you are getting closer to the goal identified at the outset?

• If not, why?

• And what can be done to change that the next month?

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MANAGE THE PROCESS AND THE COST

Litigation is far from a science, let alone an exact one

• Accept that you are managing within a realm of uncertainty

• But don’t let that dissuade you from self-inflicted or avoidable mistakes

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THE PRINCIPLES IN PRACTICE – APPLIED TO A MAJOR CASE

Nature of the Case

• Dozens of lawyers on the other side

• Tens of millions of pages of production; anticipate 50+ depositions

• Substantial amount in controversy so cost control not paramount

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Relationship

• Existing relationship with lead counsel is essential

• Maintain that with periodic lunch or dinner

Objective – at the outset, and regularly updated

• What is a range of acceptable resolution (or what do we need to know to establish that)?

• How broadly to conduct discovery

» What do we need to know (factually) that we don’t

» What legal issues need to be framed or understood?

» What do we need to teach the other side about the facts or law?

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Incentive

• Negotiate the fee – if it’s a big case for you, it’s also a big case for the firm

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NUTS AND BOLTS

• Meet regularly in person (every two weeks?) with a pre-approved agenda

» Discuss short term; medium term, and end game

» Agenda at least 2 days prior

• Single lead at hearing – insist on that

• Deposition team – 2-3 maximum – creates a knowledge base

» Webcast depositions so the rest of the team can watch, without travel expense

• Set up a cost-effective ESI review system – in-house is usually preferable to a vendor

» Collaborate on search protocol and get results from level one, before doing level two, three, and more

• Continue to review discovery and expert needs and that they are necessary to the objective

• Maintain firm control, but in a partnership with counsel

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CONCLUSION

• Litigation is unpredictable, expensive, and dynamic

• But that does not mean it cannot be managed

• It means, instead, it must be managed

» Goal is to contain, not eliminate, litigation variables

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litigation management: getting the most out of your trial team douglas brothers texas lawyer...

Documents

developing relationshipshas

business problem

business needsasks

compatible lawyer

skillsets relationships

plaintiffs lawyer

determined objective

beginningdiscuss objective