Often overlooked questions to ask when retaining outside litigation counsel

Even though companies are increasingly facing high-stakes commercial or securities-related litigation arising out of the subprime crisis or the down economy, in-house counsel are showing a tendency to omit or refrain from asking important questions, or setting key parameters, in considering or retaining outside litigation counsel.
Indeed, sometimes in-house counsel are less demanding and inquisitive when hiring a $700+ per hour litigator to handle a multi-million dollar action than they might be when, for example, hiring a contractor to upgrade the bathroom in their home.
Often this is due to time pressures, preexisting relationships, and general discomfort in questioning a fellow professional. However, general counsel, heads of litigation and other in-house counsel should routinely ask many questions, and they are entitled to honest, unequivocating answers to these questions
In-house attorneys should also look for particular skills, abilities and overall attitudes in retaining external litigation counsel.
Below are suggested questions to ask your outside litigation counsel.

1. Ask if the lawyer thinks you will win the case.
Many external lawyers hate this question and will avoid answering it like the plague. They will hem and haw about how they need more information, discovery, etc. And while it is true they will need and acquire more information as the case goes on that may change their assessment, they should provide you with their “initial take” based on the facts as presented. At the very least, they should tell you whether or not they think you have the better of the arguments.
This question also poses a good test for what working with the lawyer will be like. Often lawyers resist answering this question because they are more concerned about how their answer could come back to haunt them than they are with helping you make an educated decision about the case and who to retain. Or they just have difficulty providing simple answers, which could be troubling as well.
You need an attorney who can make complicated disputes seem simple for judges, juries and/or arbitrators who may not see the legal issues or fact patterns presented in your case on an every day basis.
Remember, you want a lawyer who can be blunt when necessary and tell you when and where you have problems, so you can consider potential solutions, or even think about pursuing settlement before expending more legal fees. While you want an attorney who will skillfully and diligently go after the case, the attorney should also be able to put on his or her “business-person cap” at key moments to determine whether the potential costs of the litigation outweigh the benefits, and bring these issues to your attention. How the attorney answers the question “will we win the case?” will be quite telling.

2. Focus on the lawyer, not just the firm.
While a law firm’s stellar reputation is important, obviously it will be a lawyer, not the law firm, who will be running the matter. While the firm’s reputation provides the lawyers at the firm with a stamp of credibility, not every attorney at the firm is right for the case.
You should focus on the attorney who will be running the case. Matters are often won or lost at depositions or based on key documents. The attorney who is in the trenches often matters most. Find out about their past results, their experience running cases, and their familiarity with the subject matter, or, at the very least, attempt to discern their ability to achieve familiarity with the subject matter quickly.
Often companies want to hire a “big gun,” someone whose name will appear on the papers and who adversaries will take note of, and who may eventually try the case if it gets that far, but may not be involved in the case before then (or sometimes even at trial). While this may be an effective strategy, the client should be aware in advance that it has elected such a strategy, and also hone in on the attorney who will primarily handling the matter.
Also, in-house counsel should remember that there is often an advantage if the attorney working on the case is also the one getting the billing credit at the law firm for the matter. The fact remains that the attorney getting the billing credit will have the most motivation to make sure the case is done right, that the fees are appropriate, and that the client is happy. If the billing attorney is not actually working directly on the case, you should make sure that the attorney has the management skills and clout to ensure that the case is properly run.

3. Find out in advance how the case will be staffed.
This dictates how the “day-to-day” of the case is handled, and who will be working on it. It also gives you a window into how much the case will cost with that particular firm. For example, if the case is a $20 million breach of contract dispute, and the prospective firm is suggesting staffing it with three partners, three associates and paralegals, you may choose not to go that route.
You may also wish to ask if the prospective counsel would be amenable to coming back to you before increasing the number of attorneys working on the case. Their answer will provide you with a hint of what it will be like to work with the attorney on the matter, and it is also one of the better methods for controlling costs.

4. Ask for a client reference.
You would certainly ask this of your home improvement contractor. Why not ask for it of your prospective lawyer? Who is better to advise you as to what it was like working with the lawyer than a fellow client who was in your shoes?
This is a great way to screen prospective counsel, find out if they achieved good results, and obtain helpful hints as to how to work with that counsel.

5. Ask how much the case will cost.
Outside counsel also seek to avoid this question, but they should have a general idea based on past experience how much the case will cost through different stages. They should provide you with their best guess, even if it is a range.