The corporate culture of the post-financial collapse places a premium on cost-cutting, improved efficiency and heightened productivity. Litigation can be viewed as an enemy of this new culture. It is an invariably expensive, risk-laden and time-consuming means of resolving corporate disputes. Corporate plaintiffs are willing to/must expend valuable resources to vindicate and/or protect their rights but want predictable results at the lowest price point. Corporate defendants, however, are compelled to expend resources to fend off claims, but view the process as a drag on productivity and anything but a profit center. There isn't a single experienced trial lawyer who will counsel that litigated outcomes are predictable.
However, every litigation can and should be "won" if six critical steps are followed:
1. Ascertain the business objective of the company: This must be the first step in every potential case. Only when this initial issue is resolved, can a litigation plan and budget be determined.
2. Understand the relative importance of the case to the client: Not all cases are bet-the-company cases. Understanding where each case sits on that continuum will drive level of aggressiveness of litigation tactics.
3. Set and meet specific client expectations: This applies to both in-house and outside counsel. Attorneys can increase predictability of the litigation process if the business objectives are understood, the litigation plan set and the importance of the case to the client is understood.
4. Eliminate surprises: This does not mean that attorneys will win all motions, or that verdicts and judgments will not be entered against the client. What it does mean is that, at every stage of the litigation, the client is fully advised of the strengths and pitfalls of every litigation strategy, that options are fully explained and that communication paths remain open. News should be delivered immediately and all options considered.
5. Prevent "noise": Noise is anything that diverts laser-like focus from the litigation plan. These distractions include: Litigation about the litigation, disputes about the existence of documents as opposed to a right of production, and hostile relationships between opposing counsel. Each "noise" overwhelms litigation objectives, increases litigation costs and alters the risks associated with the case in general.
6. Remain nimble: After an initial factual investigation, thorough legal research, initial pleadings, discovery, significant motion practice, ADR and trial, in-house and outside counsel need to be willing to amend their original litigation plan.
These basic rules are the hallmarks of successful litigation management and are even more critical in the new economy. With increased focus on driving down overall litigation spending/costs, rigorous adherence will increase the ability of outside counsel to successfully implement alternative fee arrangements and even avoid protracted litigation entirely. Winning does not always mean obtaining a favorable judgment. If a client's business objectives are understood, expectations are set and met, and surprises and noise are eliminated, the ultimate outcome of any case will be considered a "win" because of the partnership created between in-house counsel and their outside lawyer or law firm.
