John DeGroote is the President and Chief Legal Officer at BearingPoint, Inc. and member of the ACC Dallas-Fort Worth chapter. Alan Dabdoub is Special Counsel at Lynn Tillotson Pinker and Cox, LLP in Dallas, Texas and former Chief Litigation Counsel of a large subsidiary of a Fortune 100 Company.
As we all know, high-stakes litigation can be time consuming and disruptive, and one of outside counsel’s jobs is to make the process as predictable as possible. It’s easy to assume outside counsel will provide excellent service in every case, but it’s safer to articulate what you want from them early on so you can avoid surprises and communication breakdowns. While a great process can’t guarantee the desired result, it will make managing your stakeholders’ expectations much easier. The following five tips are sure to get you off to a great start.
1. Avoid Fire Drills
Let outside counsel know as soon as possible how to minimize disruptions to the business. This may vary case by case, but in all scenarios, communicating a plan will enhance responsiveness and service. Tell your outside counsel:
- How often you’re required to update internal stakeholders during the litigation, the type of information you need, and the format in which you need it;
- The expected dates to report probabilities of a loss so the company can accrue for contingent liabilities in a timely manner;
- Protocol for contacting company witnesses and the times during the fiscal year to avoid scheduling important company depositions or undertaking large discovery projects that will consume company resources;
- The minimum amount of time needed (i.e., one month, two weeks, etc.) to respond to document requests, begin preparing for a deposition, or to review drafts of briefs.
Knowing these details allows outside counsel to better understand how to minimize business disruptions, while reducing internal stress and creating a tailored, professional service that surpasses clients’ expectations.
2. Get Rid of Bad Problems Quickly
Great problem solvers use early case assessments and alternative dispute resolution techniques, and motivate their adversaries to resolve the case. Exploring various alternative dispute resolution strategies demonstrates sophistication, not weakness. If possible, lead rather than manage the process. Suggest a call to opposing counsel to objectively present weaknesses in your adversary’s case, suggest that outside counsel send an offer of judgment early in a case to shift the risk, suggest a summary trial immediately after discovery, or suggest a non-binding arbitration.
The benefit of exploring creative dispute mechanisms is twofold: Earlier resolution allows you to focus on preventing litigation, and if the case isn’t resolved, you’ll be in a much stronger position to marshal support for a trial from your internal stakeholders. Exhausting creative problem-solving techniques will help prevent second-guessing in the event of an adverse verdict.
3. Help Me Do More with Less
You’re charged with enabling the business in a legal and ethical way. The less time spent on outside counsel tasks, the more time spent on enabling the business. Outside counsel will increase productivity and value by doing the following:
- Return all emails and calls within a few hours after they are received if possible.
- Conduct an early case assessment before filing suit if the company will be the plaintiff, and within 90 days of being served if the company is a defendant. This early case assessment will serve as the playbook during the litigation;
Outside counsel should also provide you with several things including:
- Electronic or hard copies of all substantive pleadings, emails and correspondence;
- Short and practical litigation reports;
- Briefs ready for filing.
- A liability and damages analysis every quarter;
- A scheduling order of the case allowing you to inform internal stakeholders of important events happening in the case; and
- A robust decision tree analysis of the value of the case, updated as appropriate, so you can recommend to stakeholders the best final resolution for the company.
This type of service will ensure that you’re updated often on the substantive, strategic and budgetary aspects of the case. You’ll be able to answer tough questions about the case anytime and will be free to take on other challenges within the company.
4. Help Me Pitch Your Value
The most overlooked attorney work product is the invoice. Outside counsel should not send invoices containing charges for an administrative service, associate training, or duplicate time entries. Each time entry should reflect an effort to drive the case toward a resolution. Ask outside counsel to set forth in their invoices: 1) what the fees are to date over the life of the case, and 2) a general description of how the activities on that invoice have moved the case closer to a resolution. This will help you better judge the value received in the case and allow you to communicate that value to internal stakeholders.
5. Explain the Settlement Value
A decision tree can help in-house counsel quantify the settlement value of a case depending on the likelihood of certain outcomes at different stages in the litigation (i.e., whether summary judgment will be granted, whether important evidence will be excluded, whether punitive damages will be awarded, etc.). You’ll then be able to better determine optimal settlement, pre-trial, trial and appeal strategies.
To create a decision tree, ask outside counsel for the odds of winning a summary judgment, winning at trial, and of obtaining a low, medium and high verdict. Then, ask what the low, medium and high range of a verdict can be. You can then create the decision tree based on these percentages. While a decision tree is based to a certain extent on subjective data, your internal stakeholders will understand the settlement value much better as you walk them through it. This reduces the chances of the company overpaying on a case or foregoing a propitious settlement opportunity. And your stakeholders will be grateful for that analysis.
For in-house counsel with many internal stakeholders, the litigation process should be just as important as the case result. Create a list of service expectations in every case and communicate that to outside counsel. This will maximize the value of the legal services received, strengthen your working relationship with outside counsel and enable you to most effectively manage internal expectations from start to finish.