(Editor’s note: This is the first installment of a six-part series on litigation management. Barry Weiner is a dean of the Massachusetts trial bar, having tried many cases over his 40-year career. He also has extensive experience in resolving cases through alternative dispute resolution.)
Avoiding unwanted surprises in managing litigation will be the subject of this series of articles I will write for New England In-House in 2008. The articles will focus on six practical issues I’ve come to appreciate over the years. Early case evaluation and cost/benefit analysis will be discussed in this article.
Please feel free to share your thoughts and experiences on this subject with me. I can be reached at [email protected] or 617.742.4200.
The next article will focus on the attorney/client privilege for internal communications with in-house counsel.

Don’t delay

Assuming your company has been served with a complaint (while I’ve posited this as a defensive strategy, the steps articulated are applicable to initiated litigation as well), the tendency might be to delay a comprehensive evaluation from outside counsel until the case begins to develop through discovery. Delaying such an evaluation is a mistake.
Time in these matters has a way of moving very quickly. In the interim, the costs of the case and its development may well slip away to your detriment.
Therefore, your first move may be the most important. As in-house counsel, you should actively get your arms around claims as quickly as possible in order to develop an initial assessment and strategy.
Even though you may not know at this early juncture all the facts necessary to accurately assess the claim, instruct outside counsel to promptly identify those facts available. As for those facts you aren’t able to yet confirm, outside counsel should develop conservative assumptions. In addition, have outside counsel simultaneously identify the legal issues and principals.
With those facts, assumptions, and legal issues and principals in hand, obtain a written “early” evaluation with a range of potential monetary results. Even with an evaluation qualified by assumptions, you’re in a better position.

Develop a cost/benefit analysis

Outside counsel should also identify for you the various steps and components of the anticipated work on the case through trial, and to estimate the legal fees and costs. Then compare those costs and expenses with the range of potential results to develop a cost/benefit analysis for your company.
Even at this early point in time, it may be that the numbers will dictate a particular strategy. For instance, if the estimated defense costs approach or exceed the claim, your strategy may be to settle. Conversely, the benefits in winning may dictate a vigorous defense.
In all events, assuming the decision is not to promptly settle, obtain from outside counsel specific periodic updates of the evaluation and projected costs keyed to the schedule of the case. A court ordered timeline for the movement of the case will lay out discovery, dispositive motion schedules, pre-trial and trial deadlines.
The next such update should be scheduled by you no later than the conclusion of fact discovery. With this information in hand, you will be able to periodically perform an updated cost/benefit analysis.
While the foregoing won’t eliminate all unwanted surprises, it should restrict them to a digestible level, and allow you to effectively manage the case and your relationship with outside counsel.
It should also further improve your company’s chances of a positive outcome.
A founding partner of the Boston-based law firm, Ruberto, Israel & Weiner, P.C., Barry Weiner has been a business trial and appellate lawyer for over 40 years. He’s also served as an arbitrator, mediator and a master in the courts, and he teaches advanced alternative dispute resolution at Boston University School of Law. He can be reached at [email protected] or 617.742.4200.