Ten steps to building a beneficial relationship with outside litigation counsel

Litigation management” has perhaps irrevocably changed the nature of the attorney-client relationship.
In the old days, clients routinely delegated virtually complete authority over major litigation matters to outside counsel, and trusted counsel to manage those matters effectively. The pendulum has certainly swung in the opposite direction, with clients and inside counsel relying on an increasing array of devices (such as elaborate “rules” and “guidelines” and reporting and budgeting requirements) in an attempt to manage both outside counsel and the litigation process.
While the goals of many of the management techniques currently in vogue are laudable, these techniques can be both cost ineffective and counterproductive because they tend to foster distrust and stifle creativity.
Instead, a close working relationship based on mutual trust is the key to effectively managing complex litigation.
Below are ten ways inside and outside counsel can manage their relationship in a balanced, fair way.
Follow these simple precepts and pretty soon you will be able to toss your “rules for outside counsel” into the dustbin of history.
Hire trial lawyers not litigators
The most effective litigation management technique is to hire bona fide “trial” lawyers – lawyers who love to try cases and know how to do it. Real trial lawyers (as opposed to professional “litigators”) know what will win the case and how to develop the evidence needed to win.
Real trial lawyers also know which cases should go to trial and which ones should settle – and will candidly tell you so!
Regarding specialization, don’t worry if your lawyer has not handled 100 cases exactly like yours. A good trial lawyer can master the substance of any case quickly and well enough to produce effective results, getting whatever technical help she needs from the client or expert witnesses.
How do you know who the real trial lawyers are?
Three ways: (1) ASK THEM! Ask every lawyer you interview how many cases they have actually tried to completion and how many appeals they have argued. (2) Ask for references from other trial lawyers and your in-house colleagues. (3) Google their names on your computer. It won’t take long to distinguish the best from the pretenders.

Focus on overall results, not hourly rates
Many clients get so hung up about hourly rates they forget that the ultimate goal of every lawsuit is to achieve the best possible results at the lowest overall cost. This is not to say that litigation costs should not be monitored or that outside counsel should be given a blank check. What have you saved, however, when you hire a lawyer who charges $100 an hour less and end up paying $100,000 more in settlement, or pay for 500 extra hours of time for the same result?
Litigation budgets are not worth the paper they are printed on
With increasing frequency, I am asked to prepare litigation budgets for clients or prospective clients. With rare exception this is an exercise in futility.
Any complex case involves so many unknowns and is subject to so many uncontrollable forces (e.g., the whims of a crotchety judge who calls the parties in every month for meaningless “status conferences”), which means that projecting litigation costs becomes tantamount to crystal ball gazing.
In-house counsel certainly must operate under budgets, and they need to at least provide estimates of their anticipated litigation costs because they are expected to exercise some control over legal fees. A good trial lawyer, however, can usually give you a reasonable ballpark estimate or a “high-low” range of what it will cost to try a case, and may be able to provide a reasonable projection of costs on a “task” basis (i.e., “it will cost about $25,000 to prepare and file a motion for summary judgment in this case”).
Apart from those crude estimates, however, trying to predict in advance the cost of complex litigation with any reasonable certainty is, for the most part, a monumental waste of time.

Recognize and accept the fact that litigation is inherently unpredictable
If lawyers could predict the outcome of cases with any real accuracy they would probably be at the race track handicapping thoroughbreds. Even when you reach the courthouse steps, the most that can accurately be said about any case is: “There is a low/medium/high probability that you will (if a plaintiff) recover or (if a defendant) get hit with a verdict in the range of $X to $Y.”
Good trial lawyers tend to be reasonably good case evaluators. The process, however, is more intuitive than analytical. Attempts to micro-analyze cases through the use of complex “decision tree” formulas and even computers remove judgment, creativity and intuition from the equation and can lead to terrible decisions having catastrophic results.

The key to effective case management is proper staffing
Good trial lawyers hate to litigate. Most case preparation, therefore, is delegated to “litigation” partners, associates and paralegals. As the client, you have a right to know who these people are and to have a say in their selection.
You have the right to suggest – and even insist – that a given case is not big enough to support two or more partners. You also have the right, within reason, to insist that the same personnel work on all of your cases, in order to promote continuity and efficiency.

The law helps those who help themselves
Looking back at several large cases that I have handled effectively one common theme emerges: in each case in-house counsel played a “hands on” role in the case. In several cases the client also designated a business or technical person to provide day-to-day litigation support. This kind of assistance is simply invaluable to outside counsel. It translates into better decision making, more effective and efficient results, and lower costs for the client.
One good meeting is worth 100 written reports
The best way for a client or in-house counsel to keep informed about a major case and plan effective strategy is to meet face-to-face with outside counsel every few months. Such meetings allow you to probe beneath the surface, make sure outside counsel is truly on top of the case and make quick decisions about future activities.
You should vary the site of the meetings. Sometimes they should be at your office, where senior managers or other members of your in-house legal team can easily sit in. Other times you should go to outside counsel’s office, where the files are located for easy reference and you can meet and evaluate the other members of the trial team.
If face-to-face meetings are impractical due to geographic or time constraints, conference calls are a “next best” alternative. There is no real substitute, however, for looking your lead trial counsel in the eye every so often and asking her: “How are we doing in this case?”
Communicate with outside counsel
Reporting should not be a one-way street. Take every opportunity to educate outside counsel about your company, its organizational structure and personnel, changes in your goals and objectives, any budget constraints, and your concerns about the handling of the case, its status or legal bills. The better informed outside counsel is about all of the above subjects, the better job he or she can do in responding to your needs and helping to achieve your goals.

The best settlement technique is preparing to try the case
Settlement is often consistent with obtaining the best possible results at the least cost. It is true that 90 percent or more of all civil cases eventually settle. It is also true that many courts are on the verge of shutting down due to inadequate budgets and clogged dockets.
As a result, many so-called litigation management “experts” are increasingly advocating alternative methods of dispute resolution such as mediation or arbitration. ADR has its merits, but it is always best to negotiate from a position of strength. You put yourself in a position of strength by getting ready to try the case and letting the other side know that you are ready and willing to try the case.

Perform a “post mortem” at the end of a complex case
After a major lawsuit is over, review your own performance and that of outside counsel. Consider an adjustment (either upward or downward) to the final bill based on the results achieved. Ask yourself what tactics were particularly effective or ineffective.
Save copies of helpful legal memoranda and pleadings. Use your own experience to develop practical guidelines for outside counsel, so you don’t have to reinvent the wheel in every case.
Richard M. Zielinski is a director in the law firm of Goulston & Storrs, specializing in the trial of complex business and professional liability cases. He is a Fellow in the American College of Trial Lawyers and a frequent lecturer on trial practice and related topics.