New England Biz Law Update
Most business litigators tend to tout a self-professed expertise in “complex” commercial litigation. Indeed, nearly all attorneys seem to have an inherent ability to turn even a simple business dispute into a complex case.
If you, as an in-house attorney faced with a lawsuit, are looking for a lawyer who knows how to run up legal expenses in an effort to spend the other side into submission, every lawyer in town would be happy to accommodate you; there simply is no special skill involved in making litigation more complicated.
The real trick, of course, is how to take a complex case and simplify it, while, ideally, keeping legal fees down in the process. The challenge will be made more difficult by opposing counsel who, inevitably, has been given specific marching orders to make the life of you and your client as miserable as possible.
There are some strategies, though, that can provide simple solutions to complex litigation. We believe in-house counsel should insist on these strategies when managing external counsel through a large piece of litigation.
• Demand a budget at the start of the case.
Developing a full budget for the case, at least through trial, with cost ranges for each potential phase of the litigation, is a critical step that is easy to overlook in the rush to the courthouse. Also, as anyone who has been through even one lawsuit knows, litigation is highly unpredictable.
How, then, can any attorney be expected to prepare a meaningful budget? The answer is that in-house and outside counsel all know the potential phases of any litigation — for example, the initial pleadings and dispositive motions, paper discovery, depositions, discovery motion practice, summary judgment, and so on. For each of these phases, it should be possible to develop a range, wide though it may be, of what it may cost.
The budget obviously will be a working document that counsel can revise as the case proceeds. It is critical to have, though, since commercial litigation involves an ongoing cost-benefit analysis, and it may provide an internal guide for settlement discussions.
Working with a budget also helps you “pick your battles,” as we discuss further below. Indeed, as much as outside counsel often resist developing a budget, it can be a useful tool in deciding whether to file a given motion as the case proceeds.
• Insist that the case be staffed leanly with one lead attorney and point of contact who actually knows the case.
When a case is big, outside counsel often respond by throwing tons of lawyers at the case. More lawyers, though, often mean a division of responsibility so that each lawyer on the team ends up only knowing a portion of the case.
It’s more efficient for a small team of lawyers to know the whole case. You should know the role of each lawyer on the team to ensure there is no duplication of effort, and you should have one point of contact who actually knows the whole case and exactly what is happening at each stage of the litigation.
• Focus your outside counsel on preparing the case for trial from day one.
At the same time you are working with outside counsel to develop a budget for the case, you also should be discussing what the case will look like to try: Who are the key witnesses? What are the most important documents? What are the central themes?
Often, attorneys seem to approach litigation with the sole goal of making life onerous for the other side. But attorneys who file flurries of motions, refuse basic courtesies, and try to deluge the other side with discovery are often attorneys who don’t really want the case to go to trial. They are the attorneys who won’t be ready when the case does go to trial.
When faced with these tactics, there is no better way to tune out your opponent’s distracting noise than to zero in on the themes, documents and witnesses you need to prove the elements of your claims or defenses at trial.
• Pick your battles.
Going hand in hand with preparing the case for trial is deciding where to focus your resources as the lawsuit proceeds. In complex litigation, both sides typically have ample resources, so neither side is likely to wear down the other with wasteful motions and delay tactics. Instead, such strategies just cause both sides to entrench as mutual enmity rises in direct proportion to the costs of the litigation.
While some counsel believe that filing a motion to dismiss and other preliminary motions right out of the gate is a great way to signal to the other side your determination to vigorously defend the case, it often has the opposite effect. Motions to dismiss rarely result in the complete and successful disposition of a case, so filing one that is not certain to succeed can send the signal to the other side that you’re worried about getting to the actual merits of the case.
Of course, plenty of cases really do deserve to be dismissed, but think carefully about whether a more efficient approach is to simply begin discovery and start making your opponent work to support their allegations or defenses.
• Ensure your responsive discovery is in order as soon as possible.
When it comes to discovery, it is common for both in-house attorneys as well as outside counsel to adopt an attitude of, “Why should we give them our documents and allow our witnesses to be deposed? Let’s make them do the work first.”
While it is important to serve affirmative discovery requests and deposition notices as soon as possible in the case, it is equally important to ensure that your own documents and witnesses are lined up and prepared to provide responsive evidence in discovery.
Everyone agrees that the best defense is often a good offense, but it is difficult to go on offense in discovery when your own “flank” is exposed in the form of discovery you have failed to give to the other side.
By working diligently to produce your own documents and witnesses, you will greatly reduce the other side’s ability to distract you with motions to compel and other discovery motion practice while, at the same time, allowing you to go on offense and press the other side for the discovery you need to win your case.
• Expect outside counsel to develop a cooperative rapport with the other side.
Cases often spiral out of control when opposing counsel have a bad relationship, which tends to involve fighting over inconsequential matters such as whether to grant courtesy extensions on discovery responses or squabbling over scheduling issues.
Judges usually expect all counsel to behave in a cooperative, professional and orderly manner. Insisting that your own attorneys approach their opponents in this fashion isn’t about being “nice”; it’s good strategy.
Counsel should avoid a “tit for tat” mentality in which they give in to the impulse to respond in kind to the bad behavior of the opposing party. Inevitably, that approach will end up consuming your side with collateral, pointless fights that do not get you any closer to a disposition of the case, while also making both sides look bad in front of the judge.
Where, as sometimes happens, opposing counsel simply refuses to cooperate, get the court involved, but not through motions for sanctions. Judges fairly consistently despise hearing about fights in which the attorneys attempt to portray each other as bad guys. The better approach is to seek the court’s involvement through a more neutral vehicle, such as a Rule 16 conference in which the court can help ensure that discovery proceeds in a more orderly and efficient manner.
• Encourage counsel to agree early in the case on certain “rules of engagement.”
In the spirit of developing a cooperative rapport with opposing counsel, you should ask your outside attorneys to try to establish some standing agreements about how they will handle matters that routinely arise in all litigation, such as confidentiality, privilege and electronically stored information.
Indeed, federal courts and many state courts have enacted rules and standing orders to ensure that cases do not get bogged down in these sorts of issues. But it is important that counsel adhere to the rules at the outset of the case and try to agree on as many procedures as possible to minimize costly disputes later on.
Tyler E. Chapman, a partner at Todd & Weld in Boston, has a general litigation practice with a focus on commercial and real estate-related disputes. Amy Morrissey is executive vice president, general counsel and corporate secretary at FusionStorm.
