The role of corporate counsel today is very different from not that long ago when corporate counsel selected outside counsel and then effectively delegated the litigation to them. Now corporate counsel is responsible for the expense and outcome of litigation. As such, corporate counsel must budget and control litigation expense, oversee the litigation, and take steps to ensure the objectives for the litigation are met.
In addition, corporate counsel now face pressures to meet company goals and achieve successful litigation outcomes for the company or face the consequences. It is no longer a valid excuse to blame litigation counsel. To stay on top, corporate counsel must follow these five unbreakable rules for successfully managing litigation counsel.
1. Reject the old ways. The days of simply delegating litigation to outside counsel are gone. The past has shown that assigning a lawsuit to litigation counsel and leaving it to them is asking for trouble and putting your faith in the hands of the litigation gods. To avoid unpleasant surprises and unemployment, corporate counsel must reject the old school mentality of corporate counsel.
Today's corporate counsel must stay actively involved in the litigation. To get the best results out of litigation counsel, corporate counsel should:
2. Decide first how the case should end. Litigators are trained to litigate and the better ones "vigorously" litigate. There is a German expression that blind energy hurts your cause. Before assigning a case to litigation counsel, corporate counsel should consider how he expects the case to end: settlement, dispositive motion or trial. Deciding the end game first allows counsel to devise a strategy and litigation plan to achieve the desired result.
For example, an early decision to settle the case may affect the posture to take with opposing counsel. Certainly if the desire is to settle the case it is important to inform litigation counsel before he takes an aggressive approach with opposing counsel. Similarly, a determination to bring a dispositive motion may defer or limit the need for extensive discovery. A decision to end the case by dispositive motion should be made and communicated to litigation counsel before he prepares unnecessary discovery or files unneeded motions. Likewise, if the plan is to take the case to trial, then playing nice with opposing counsel or delaying discovery and motions is unnecessary and may be counterproductive.
Obviously circumstances may change. But deciding how the case should end at the outset is critical to an effective outcome.
3. Collaborate often but always decide. Collaboration between attorney and client is critical to a successful outcome of any litigation. Corporate counsel should inform litigation counsel to collaborate on such things as what depositions to take, what motions to bring, whether and when to retain expert witnesses, and when to approach settlement. Meaningful collaboration includes all team members—not just the lead attorney. Do not short change the value of collaboration. Brainstorming has resulted in creative solutions for successfully ending expensive and risky litigation.
The keys to successful meetings are to keep them short, focused, regular and mandatory. The meeting should have an agenda that includes the status, "to do" list, and topics for discussion. The agendas should be numbered and each agenda should include reference information such as upcoming dates, key deadlines, fees incurred to date, and the dates and amounts of any settlement offers. This allows corporate counsel to have ready access to important details of the litigation for internal reports.
Corporate counsel is the client and should always make decisions after collaborating with litigation counsel. Remember, what is best for litigation counsel is not always best for the client.
4. Have big ears. Litigators quickly (and repeatedly) inform corporate counsel of good news but are slow dispensing bad news. It is thus important to ask litigation counsel frequently how the case is going and whether they are on track to meet the stated objectives. It is even more important to listen to them carefully for clues that problems may be afoot. At the first sign things may not be going as planned for whatever reason, it is imperative that corporate counsel get all the facts, revaluate, and if necessary, change the litigation strategy. To ignore the signs or delay addressing the issues will only compound the problem.
5. Stay current and embrace technology. Corporate counsel should stay current and be familiar with the most recent litigation technology and software. There are many case management programs that allow litigation teams to scan, store and organize evidence for trial. Litigation counsel should be using one of these programs because it saves money and ensures information is easily accessible to all members of the litigation team when needed for dispositive motions and trials. Corporate counsel should also insist on access to all pleadings, discovery and transcripts, as well as to the document database.
Technology now allows court reporters to stream depositions in real time. Not only does this offer cost savings but also allows corporate counsel to monitor key depositions from their own computers. This technology allows corporate counsel to observe the witness, his demeanor, and email or text litigation counsel comments and questions on the fly. If corporate counsel is more technological current than litigation counsel, it may be time to change litigation counsel.
Today's corporate counsel has many more demands than her predecessors. Yet, many attorneys still covet corporate counsel positions. This creates pressure for corporate counsel to exceed the company's goals or perish. Although litigation because of its adversary nature is difficult to control, corporate counsel can increase their chances for meeting or exceeding litigation objectives by following these unbreakable rules.
Jeffrey Huron is a member of the Business Litigation Group in law firm Dykema's Los Angeles office. With over 25 years of experience litigating and arbitrating business, real estate and entertainment disputes, Mr. Huron has tried and won several multimillion dollar, high-stake cases for a wide range of clients.