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TRANSCRIPT
Demystifying Working with Outside
Counsel
Presenter: Catherine Burgett
Presented To: HRACO
Agenda
Why They Are That Way
How Law Firms Work and Bill
The Rules We Follow
The Anatomy of a Civil Rights Case
Hawkeye: Chingachgook, he warned me
about people like you.
Cora Munro: Oh, he did?
Hawkeye: He said "Do not try to understand
them".
Cora Munro: What?
Hawkeye: Yes, and, "do not try to make
them understand you. That is because they
are a breed apart and make no sense".
How They Became That Way
Type A Competitive, outgoing, ambitious, impatient and/or aggressive
More likely to suffer stress related illness
More likely to suffer depression, alcoholism
Hate waiting in long lines - near phobia of wasting time
Relaxing is hard
Talk over and interrupt others – trying to move that conversational
ball
In a rush
Very low tolerance for incompetence
Make it happen - usually with a list or two
Law School Social Experiment
Over-achievers and Driven
But, Driven to do What?
Justice
Money
Power
Drawn to the job
A lack of viable options
You Should Ask!
Realities of their Practice and
Lives
Many clients, many demands
Thousands of names and fact patterns
Personally impersonal
Expect night/weekend/vacation calls
Groceries, toilets, and pants
A Few Thoughts About Lawyers
We don’t mean to be obnoxious when we use
jargon – it’s actually the fastest way for us to
communicate
We are ridiculously careful with our words – we
have to be
We believe that everything goes wrong – always
Make-Up of Law Firm
Run by lawyers – who went to law school
Hidden costs
Research
Copies
Non-billable time
Insurance
Bar fees
Normal overhead
Make-Up of Law Firm
Engagement Letters
Necessary evil
Safeguards the attorney client privilege
Defines the scope of representation and
relationship
Staffing
One partner/one associate
Benefits of using junior associates
BUT – sometimes you need experience
Staffing
Steve – Associate: $185
Rich – Partner: $500
Project A
Rich could do it in 7 hours
Steve will take 15
Rich will write-off two hours of Steve’s time
If Rich does: $3,500
If Steve does: $2,405
Staffing
Steve – Associate: $185
Rich – Partner: $500
Project B
Rich could do it in 7 hours
Steve will take 15
If Steve does it, Rich will spend 5 hours fixing it
If Rich does: $3,500
If Steve does (with Rich editing): $4,905
Billing (eek – NO, not that!)
We don’t like it either
History of the billable hour
Discuss fees and bills up front and often
Office conferences
Six minutes at a time
Alternative fees
Ounce of prevention
The Judicial System
The rules we must follow
Rules of Professional Conduct
You must make informed decisions
We must be competent
We have to do what you say
We need to communicate and be diligent
We keep your secrets (unless….)
We can’t have conflicts (unless….)
We must treat your money carefully
No shenanigans
Can’t lie or ask others to
Must be fair to opposing party
Can’t call a represented person
Have to supervise the younglings
The Judicial System
Civil Rules of Procedures
Sets out the guidelines for civil litigation
Answers everything from when to how to
whom
Sets deadlines, page limitations, filing
instructions, discovery (more later)
Sometimes carved in stone – sometimes not
Federal vs State vs Local vs Judge’s Standing
Orders
The Judicial System
Discovery and E-Discovery
Initial
Set by rule or Judge’s order
Discovery phase
Written
Documents
Admissions
Depositions
Responding to:
Onerous and exhaustive
Proportional
E-discovery
Process
Sanctions
The Judicial System
Case law
Supreme
Federal
State
Local Appellate
Agencies
The Judicial System
A Case Study
The Anatomy of a Civil Rights Case
Where to File? Preliminaries?
Complaint
Filed by plaintiff
Served on you
You have a set amount of time to answer
Must admit or deny every allegation
Must raise certain affirmative defenses or waive
them
If you have certain defenses, must make them
before you answer the complaint
The Anatomy of a Civil Rights Case
Preliminary Procedure
Read Complaint
Get mad
Get an attorney
File Answer
Pre-Trial Conference
Set dates
Learn judge’s posture on settlement
Set parameters for litigation
The Anatomy of a Civil Rights Case
Discovery
A deadline will be set
Usually progresses in phases – written first
Have about month to answer discovery – almost
always takes longer
You gather
Attorney reviews and produces
Privilege log
What to do with bad documents?
The Anatomy of a Civil Rights Case
Dispositive Motions
Takes care of the whole case
Not all cases are good for them
Make a determination early on – constantly revise
May affect decisions you make
Time consuming
Can be costly
Grant can be appealed - denial cannot
The Anatomy of a Civil Rights Case
Settlement Conferences
Typically required
Interested parties must attend
Must be prepared to negotiate in good faith
We are not cowards
We are looking out for you
Principle costs
Considerations
BATNA
It never stops
The Anatomy of a Civil Rights Case
Other Motions and Filings
More definite statement
Discovery
Protective Order
Sanctions
In Limine
Pre-trial brief
The Anatomy of a Civil Rights Case
Trial
A few days to
weeks
Jury or Bench
More than one
attorney is key
Technology
Representative at
table
Witnesses
sequestered
Phases
Pre-Trial
Voir Dire
Openings
Plaintiff
Defendant
Rebuttal
Closing
Jury Instructions
Verdict
The Anatomy of a Civil Rights Case
Appeal
Issues must be preserved
And preserved again
Process
Appeal
Assignments of Error
Statement of Case
Briefs
Oral Arguments
Decision
Possible remand?
Tips for Working with Counsel
Ask questions
Be direct
Be honest
Set expectations
Ask for expectations
Don’t get mad
Plan for the long haul
