the value proposition of going to trial 12 effective strategies that maximize value & results in...

The Value Proposition of Going to Trial12 Effective Strategies that Maximize Value & Results in Your Litigation

Copyright © 2014 Steckler LLP All Rights Reserved. (972) 387-4040 www.StecklerLaw.com 2

PLEASE READ BEFORE CONTINUING ON.

BY ATTENDING, RECEIVING AND RETAINING THIS PRESENTATION YOU AGREE TO THE FOLLOWING:

This presentation is copyrighted. Copyright © 2014 Mazin Sbaiti – All Rights Reserved.

Any use of the information herein is via a limited license granted to you by Mazin A. Sbaiti and Steckler LLP. Any republication, dissemination or sharing without the written consent of Mazin A. Sbaiti is strictly prohibited.

This presentation is for informational purposes only. Nothing herein shall be construed or be taken to constitute an attorney client relationship between the reader and Steckler LLP. All cases and circumstances are different, and any attorney-client relationship will only be formed upon the mutual agreement of the parties as set forth in a fully executed written retainer agreement.

Please send any helpful comments to Mr. Sbaiti at [email protected]

Introduction: The Challenges Facing Legal DepartmentsTrends in Business Litigation

4

The Trend for Most Legal Departments

• You are being called on to get more accomplished with less.

• The number and value of litigation matters are increasing.

• Discounted law firm rates are not achieving enough of the efficiencies you need.

• There has to be a better way to do things…a better approach.

Copyright © 2014 Steckler LLP All Rights Reserved. (972) 387-4040 www.StecklerLaw.com

5

FOUR DISRUPTIVE QUESTIONS YOU HAVE PROBABLY BEEN ASKING YOURSELF…

1. “How do I get positive Value and Outcomes from litigation counsel, and not be forced to choose between the two?”

2. “My company’s leadership increasingly demands fiscal accountability, is negotiating law firm rates the only way to get there?”

3. “We are under threat from intellectual property, class actions, and government actions—how can counsel help me efficiently and effectively manage those risks?”

4. “There are opportunities for our business to bring legal claims—and for our department to bring in revenue– but how do I identify them and monetize them?”


The Twelve Strategies That Can Help Drive Value and Results…Some May Even Surprise You

Strategy No. 1You Must Credibly Threaten to Go to Trial


Be in a Position to Credibly Threaten Trial

• Credibly threatening that you will go the distance and can win at trial is the biggest driver of a judgment, settlement, or dismissal in your favor.

• The credible threat of trial is not about posture, it’s about hiring the right counsel known to take matters successfully to trial.

• A 2008 report by NITA showed that over 90% of law firm litigation partners have never tried a case.

• Trial is unabated risk in the wrong hands—it isn’t enough to be “smart”.

Strategy No. 2 Determine Your True Litigation Risk


Value the Litigation Risk Spread as a Whole

• Look at the spread of potential outcomes, the magnitude and the probabilities.

• Measure these against your desired outcome and your budget.

• Measure the potential outcomes against indirect business impacts:

• Relationships with business partners

• Relationships with clients / customers

• Follow-on litigation or government action

• Insurance / indemnifications

Strategy No. 3 Price Litigation Fees To Reflect Value and Outcomes


Price Litigation Fees To Generate Value and Outcomes

•What value would you assign to achieving each given outcome?

• Can you get competent counsel—who has the ability to achieve your desired outcome—for the value you have assigned?

• Are there other ways of handling the litigation—including early resolution—whereby you might achieve a nexus of assigned value and your desired outcome?

Strategy No. 4 Consider Alternate Fee Arrangements


Consider Alternate Fee Arrangements

Monthly Flat Fees

• Monthly flat fees align your interests with the law firm, while removing adverse incentives to work the case or settle the case.

• Monthly flat fees allow you to have relative certainty that you will not exceed your budget.

• Monthly flat fees shift volatility risk of activity in the case to the law firm.

Structured Fees

• Making some or all the fee contingent on a desired outcome allows you to maximize value and budget.

• Law firm is sometimes in a better position to bear the risk of not obtaining the desired outcome.

• Using “bonuses” in major defense cases aligns the incentive structure with your preferred outcome.


Consider Alternate Fee Arrangements

Avoid these types of AFAs

• Except in short-term projects, up-front flat fees incentivize case retention, but actually put both the client and the law firm in opposing postures.

• Pure contingency fees on difficult, but important matters put the law firm in the position of not investing too much time or effort in a losing case, even though that may be what the client expects or needs.

Why Don’t People Use AFAs?

• Too often client and its law firm don’t have enough trust, and each is trying to avoid the other getting a windfall.

• Client and law firm lack commitment to the value of legal services as measured by the outcome, and are too focused on short-term budget.

• Client and law firm have not discussed the “how” of achieving the outcome—thereby lacking agreement on what effort it will take to get there.

Strategy No. 5 Consider the Upside and Downside to Arbitration


Consider the Upside and Downside to Arbitration

• Arbitration is an excellent mechanism for avoiding lawsuits if deployed properly.

• Arbitration in the context of unbalanced financial or negotiating power can be devastating to your business.

• Arbitration is not necessarily more efficient, confidential, or less taxing than litigation in a court.

• Arbitration gives a weaker case a better chance due to the “equity” principals in arbitration.

Strategy No. 6Design a Litigation Plan that is Tailored to Your Outcome & Budget


Design a Litigation Plan that is Tailored to Your Outcome & Budget

“Begin with the End in Mind”

• Start with trial—actually, start with the jury verdict—what outcome do you want from them?

• What is the jury likely to buy as a story and vote for you?

• What is the law, what are the elements, and how will those look on the jury charge?

• If the fact-finder had the chance to write a reason for their decision, how would it read?

…. And Work Backwards

• What facts do you need, and what evidence is there that proves those facts?

• What “bad facts” are there and what does that evidence look like?

• How do we get the evidence we need, while excluding the evidence we don’t want, or at least, mitigating it or rendering it inert?

• Is that evidence presentable at trial in a way that the jury will understand?

• What barriers, logistical and financial, exist to each?

Strategy No. 7Be Strategically Tactical in How Litigation is Conducted

Be Strategically Tactical in How the Litigation Conducted – Four Examples

Head Shots vs. Scorched Earth

Identifying the specific thesis of your case is far more effective than

defensive or purely tactical litigation activities.

Minimize the Litigation Events

You can save 40% of your litigation costs just by minimizing the number

of litigation events—depositions, hearings, meetings—with no loss of

strategic value.

Don’t Delay

Delay is rarely your friend and is a poor litigation tactic, especially for

defendants. Move fast when possible to stay ahead of the opposition.

Don’t Be Seduced by Motions

Writing well is the single most time consuming and expensive part of litigation – yet an overwhelming number of oft-filed motions fail.


Strategy No. 8 Focusing on “Effective Hourly Rate” Will Help You Avoid Excess Costs and Important Information Losses

23

Sometimes Less is More

Large Litigation Teams Cost You Money and Strategic Advantage

Having more than a couple of lawyers can add hundreds of thousands of dollars in duplicative billing.

…You can end up with “effective hourly rates” of well over $1000.

According to several studies, teams of more than three people lose as much as 70% in the transfer of information and learning.

Large teams also require more time, effort and energy to coordinate.


Strategy No. 9 Focus on Results—Avoid the Document Discovery Battleground


Don’t Make Document Discovery the Battle Ground…Unless You Have To

• 99% of cases come down to a handful of documents—yet sometimes millions of pages are exchanged.

• An overwhelming majority of opposing counsel are experts at only one facet of litigation—discovery.

• Take out the “discovery bullet” –specifically, surrounding your documents, and they won’t know what to do.

• There is a powerful way to balance your production obligations and looking cooperative with the costs associated therewith.

Strategy No. 10 Move Fast to Gain the Greatest Strategic Advantage

27

Move Fast to Gain the Greatest Strategic Advantage

Have you ever thought of filing first?

• In a world of strategic litigation, where you litigate can change the expected outcome.

• Filing suit in a place that is more favorable to your interests can be a game-changing move.

• Filing your claims first also gives you a stark advantage at trial because as the “plaintiff,” you get to speak first and last before the jury…

• Waiting to be sued and hoping for a change in venue is often a long shot tactic.



Move Fast to Gain the Greatest Strategic Advantage

Consider these “out of the box” strategies to move the case faster:

Skipping filing a motion to dismiss.

Immediately depose the other side’s main witness(es).

Agree on the key issues.

Enter into a pre-trial agreements early to make litigation more efficient.

Make a voluntary document production quickly.

Offer to settle the case right away at a low valuation.

Strategy No. 11 Look for Opportunities to Monetize Your Claims

30

Look for Opportunities to Monetize Your Company’s Claims

Affirmative Claims

• Claims for breach of contract

• Tortious interference/defamation

• Claims for patent infringement

• Claims for fraud

• Antitrust / unfair competition claims

• Claims for trade secret violation

• Claims for breach of copyright

• Lanham act claims—trademark or trade-dress violations

Opt-in or Opt-Out Claims

• Major class claims in antitrust or commercial class action litigation.

• Recent examples include:

• Visa/Mastercard Interchange Fees Antitrust

• Marine Products price-fixing

• Banking Fee actions

• LIBOR Debt Manipulation

• Cyber-security actions

Copyright © 2014 Steckler LLP All Rights Reserved. Tel: (972) 387-4040 | www.StecklerLaw.com


Some of the Most High Profile Plaintiffs Might Surprise You

The Largest Verdicts are Generally Won by Businesses in Business Cases

• Pennzoil v. Texaco ($6 billion, Breach of Contract)

• Apple v. Samsung ($3 billion, Patent)

• Pacesetter Inc. v. Nervicon Co. Ltd. et al., ($2.3 billion, Trade Secret Theft)

• DuPont v. Kolon ($920 million, Breach of Contract)

• In re Urethane Antitrust, ($1.2 billion, Antitrust)

Some of The Most Prolific Business Lawsuit Filers in History Might Surprise You

• Thomas Edison/General Electric filed over 500 lawsuits, the most famous was against Tesla and Westinghouse for infringing its patents on direct-current.

• That crown was taken over by Apple, Inc., the most frequent plaintiff over the past 30 years, having filed over 250 lawsuits and over 350 oppositions with the USPTO.

• T. Boone Pickens was a prolific litigation advocate in the 1970s and 1980s during the energy take-over frenzy.

• Texas Instruments invented the E.D. Texas patent “rocket docket.”

• Henry Ford filed thousands of lawsuits against striking workers—until he convinced them to unionize.

• Nathan Myhrvold—Microsoft’s former Chief Technology Officer has brought hundreds of lawsuits in the past several years over a variety of disputes.

Strategy No. 12 Learning from the Past: Structure Your Business to Avoid Litigation and Win…Quickly

33

Learning from the Past: Structure Your Business to Avoid Litigation and Win…Quickly

Important questions to ask yourself:

• Are you fighting the last battles, or preparing to fight the next ones?

• Are there steps you can take to make litigation against your company unpalatable or un-economic?

• How prepared are you to win at litigation—whether as a defendant or a plaintiff?

• What can you do to prepare your business to win quickly in the event you find your company involved in a lawsuit?



Learning from the Past: Structure Your Business to Avoid Litigation and Win…Quickly

Example 1: Written Contracts

• Contracts are ubiquitous in all facets of business, and therefore, in business litigation.

• But what gets litigated is not what is in them, it’s what was left out, or what is left unclear.

• Few businesses draft their agreements with “how to prove” their side at summary judgment, or with a jury in mind.

• Structuring contracts to make it easy to prove to a judge or jury is highly strategic and can save a small fortune in legal fees and expenses.

Example 2: Intellectual Property

• Intellectual property litigation is not going away any time soon, and often is the most expensive type.

• Few businesses approach their IP protection strategy with the thought of quick-enforcement.

• Even fewer approach their IP strategy by taking on defensive IP positions, which are highly persuasive to juries.

• Structuring your IP strategy to make success at trial easier and more efficient can be a boon to your department.

About The Sponsor of This EventSTECKLER LLP


Founded in 2013 by three trial lawyers with 100 years’ and 75 trials’ worth of collective experience, and a common vision to provide results-driven litigation to their clients, with first-class service and the best value.

The principals have achieved unmatched results across almost every industry:Manufacturing

Technology

Pharmaceutical

Nutrition Products

Real Estate

Construction

Insurance Industry

Biotech

Municipal Wi-Fi

Chemical

Communications

Software

Energy / Oil & Gas

Medical/Healthcare

Internet

Consumer Products

Securities / Investment

Shipping

T: (972) 387-4040F: (972) 387-4041www.StecklerLaw.com

12720 Hillcrest Rd.Suite 1045Dallas, Texas 75230


Bruce W. Steckler

[email protected]

Mr. Steckler represents plaintiffs and defendants in litigation all over the country, and has an unparalleled track record for success in business, pharmaceutical, medical, insurance, construction, and industrial matters.

He is currently co-lead counsel in defending a Dallas-area business against over 150 cases filed by injured plaintiffs all over the country. He has also served as court-appointed counsel in nationwide litigation over product defects and pharmaceuticals. He is currently representing a local doctor in a work-place injury claim, as well as a local real estate firm in a wrongful death matter. He previously represented hundreds of doctors and hospitals in injury and insurance matters.

Mr. Steckler has also represented plaintiffs and defendants in a variety of industrial injury and latent-injury matters.

Mr. Steckler has also, along with Mazin Sbaiti represented municipal clients and school districts to recoup losses and force insurers to honor their insurance agreements, and is currently representing the County of Willacy in a $65 million breach of contract matter against several construction firms and their insurers, and recently completed the defense of a real estate developer in a breach of contract action.


Lance [email protected]

Mr. Pool represents plaintiffs and defendants in a variety of injury, insurance and breach of contract matters, and brings over 30 years’ experience advising large corporations on litigation liability and risk.

Mr. Pool previously served as in-house counsel at several insurance companies and was General Counsel of Transport Insurance Company, defending the businesses from a variety of catastrophic injury lawsuits and wrongful death suits brought against insureds all over the United States.

He was then asked to run several bankruptcy trusts of asbestos manufacturers. And was also CEO of one America’s most profitable law firms.

Mr. Pool currently represents a cutting edge information technology company in all facets of its negotiations and dispute resolution.

Mr. Pool is also representing plaintiffs and defendants in various litigations in breach of contract, insurance and injury disputes.


Mazin A. [email protected]

Mr. Sbaiti represents plaintiffs and defendants in a variety of complex commercial, business torts, banking, securities, intellectual property, and oil & gas matters.

Mr. Sbaiti is currently representing a Texas bank in a series of complex enforcement actions of over $10 million in debt instruments. He is also currently representing a local technology company in a variety of intellectual property and breach of contract disputes, and defending a local oil & gas services company in a breach of contract action.

Mr. Sbaiti has represented Fortune 500 companies in defending employment, securities, and consumer class actions, and in M&A disputes all over the country as well as in Canada and Europe. He also has represented medium-sized businesses against other Fortune 500 companies in patent and trade secret litigation, and has represented businesses in Internet copyright, trademark and defamation matters.

Mr. Sbaiti has previously served as a deputy assistant attorney general to several states in protecting state treasuries from Medicare and commercial fraud, and in recovering lost tax and other revenues.


Sean [email protected]

Mr. Cox represents plaintiffs and defendants in appellate matters before state and federal courts of appeal.

Mr. Cox represents clients in all facets of appellate advocacy, and works with trial teams to ensure the appellate-worthiness of critical issues by providing pre-appeal consulting and briefing support services.

He is an experienced appellate advocate with an extensive background in state and federal appellate representation, as well as in original proceedings before various appellate courts.

Sean has provided appellate representation and briefing support of trial teams in over twenty different jurisdictions across the country, including Texas, California, Pennsylvania, Florida, Louisiana, Illinois, Minnesota, and Massachusetts, and is available to assist with such matters before all levels of state and federal courts.


Still Have Questions You Want Answered that We

Didn’t Address?

Please feel free to contact any one of us at the number below to

discuss, or send us an email (on the next page) – we will gladly

share our expertise and perspective with you; there’s no

obligation to hire our firm.

Call (972) 387-4040

[email protected]

Thank You For Your Participation.Please send any feedback to:

the value proposition of going to trial 12 effective strategies that maximize value & results in...

Documents

trial slide

business litigation

steckler llp

true litigation risk

value of litigation

litigation counsel

value results

law firm litigation