Keeping ahead of the curve has never been harder for in-house counsel, with litigation management and oversight responsibilities of constant concern. Just when issues like e-discovery or privilege finally seem contained, a court decision with an unanticipated holding can threaten litigation-critical internal policies or procedures. And, as outside law firms continue to shift into more business-focused models of service, in-house counsel must sort out the difference between true innovations and those offerings that are just the same old thing in a new dress.
Understanding how a litigator drives value without compromising quality by taking apart the litigation process and tuning into bellwether decisions can help in-house counsel sort out those differences. And by looking ahead, in-house counsel can get more choices on where they want to go and more options for how they will get there.
Case-driven concerns: Past as prologue
Decisions from the last few months may serve to help counsel predict the issues that could soon consume a greater share of bandwidth in corporate legal departments. These include:
- E-discovery and predictive coding. E-discovery has seen its first published decisions on the use of predictive coding, a machine-learning technology that proponents suggest enables computers to automatically predict how documents should be classified in litigation based on limited human input. In these cases, disputes have arisen regarding whether a party should re-do already completed document productions in favor of using predictive coding and how to create a mutually agreeable protocol for programming the coding technology. Questions and disputes regarding the technology will only persist and knowing the ins and outs is vital to informed decision-making by in-house counsel.
- Use of copyrighted materials in litigation. Copyright law’s prohibition against copying can turn up in some surprising places. Recently, a copyright holder alleged infringement based on the unauthorized inclusion of protected articles as part of a patent application in the U.S. Patent and Trademark Office (PTO). In that case, the copyright claim has at least survived a preliminary motion to dismiss. If the plaintiffs’ theory holds up, the decision could have far-reaching consequences for all sorts of legal filings and may even extend to internal distribution of those filings.
- Protecting corporate attorney-client privilege. Mergers, downsizing and other corporate transitions may muddy the waters over who has the right to claim attorney-client privilege (hint: it belongs to the corporation). Similarly, the extent to which communications that involve in-house counsel and other corporate employees enjoy privilege protection is also up for closer examination, especially as in-house counsel participate in more strategic and other business-focused roles.
The bigger picture
In-house counsel charged with managing litigation risk also need to look beyond these discrete issues in order to address their important business issues. In the coming year, key considerations will include:
- Balancing value and performance. “Value” and “legal project management” have become synonymous, at least when it comes to law firms seeking to communicate how they help clients plan for and manage risk throughout litigation. But real legal project management requires a true up-front understanding of a case’s likely financial trajectory along with investment in tools and training needed to control costs while providing quality representation. Distinguishing between proposals that really deliver on both value and quality—and those whose sizzle lacks steak—matters to the bottom line.
- Legal implications of foreign activities. Expanding globalization means more businesses than ever need to consider the impact their activities abroad will have on existing litigation practices and procedures. From the Foreign Corrupt Practices Act to venue selection and arbitration clauses in international contracts to investment treaties with foreign governments, more foreign activities mean more time spent considering how to plan for and manage litigation with international implications.
In-house counsel who can anticipate what’s next based on fast-moving developments in case law while keeping an eye on key legal trends can benefit from decisions made with sound strategy instead of dealing with the consequences of a plan hastily made in reaction to outside events. Those strategies that work can then create clarity, facilitate smart decision-making, align stakeholders, and help create needed operational changes.