Herding Cats Fabian Icci

Herding Cats: Litigation Management of Complex Disputes. Richard J. Fabian Senior Vice President General Counsel Director, Litigation

Litigation Management:
Controlling the risks attendant to an adversarial proceeding in a cost effective manner while simultaneously advancing toward specific acceptable outcomes.

Most important concepts:
Control Risk
Money?
Damage to ongoing business?
Creation of bad precedent?
Cost control
Efficiency is key.
Need to do what needs to be done.
Advance toward an acceptable outcome
Define goals.
Define strategy to achieve goals.
Implement strategy with persistent, yet adaptable, focus.

Litigation Management: The Client Perspective
Responses from in house litigation managers.
Three most important concepts
(What litigation managers pray for) :
Thoughtfulness/Strategy: 28%
Communication: 20%
Efficiency/Cost Control: 18%
Competence and Responsiveness also important

The most important thing an attorney can do to improve litigation management is to…
Clients say:
Set and communicate clear goals/understand case.
Maintain focus on strategy to achieve goals.

Responses from attorneys.
(Our warriors)
Three most important concepts:
Communication: 32%
Thoughtfulness/Strategy: 15%
Winning: 15%
Competence (9%); Execution (9%).
Litigation Management: The Attorney Perspective

The most important thing a client can do to further effective litigation management is to…
Attorneys say:
Communicate goals.
Clearly communicate deadlines and strategy.

The worst thing about litigation is…
Clients:
Costs
Bad judges
Unpredictability
Unreasonable people
Attorneys:
Bad judges
Unmanageability
Inefficiency
WHEN IT$ OVER!

Interesting to note.
Attorneys ranked “winning” in third place.
Clients did not talk about winning as such, but did focus on goals.
Clients ranked “cost control” third.
Attorneys ranked this much lower or not at all.

COMMUNICATION
Both attorneys and clients rank this as the first or second most important concept.
The single item most in need of IMPROVEMENT, according to both attorneys and clients?
COMMUNICATION!!

Communication
What does it mean?
Clearly delineated goals.
Clearly delineated expectations.
Clearly delineated deadlines and guidelines.
No surprises. Give the good and bad news.
Identify the problems and give solutions.
It means …Listening.

Suit
So you have a suit …
Often multiple parties.
Consider synergies and cost control possibilities.
Also consider complications of group dynamics.
Team should talk about the case as soon as possible.

Initial Triage
What is the case about?
Is there anything that MUST be dealt with right away?
Removal?
Approaching or past response date?
Improper service?
What do we know? How bad is it?
Are there any strategic issues presented?
Appropriate staffing?
Venue?

Who’s Who?
Very important to know the case players.
Includes ALL participants.
Opposing management.
Include consideration of “Corporate opponent.”
Judge.
Jury Pool.
Opposing counsel.

Contact with Opposing Counsel.
Opinions vary on value or propriety of this.
Good to know what fight is about.
Sets up line of communication.
Are there opportunities for an early resolution?

Next Steps
After triage is complete, a comprehensive review is necessary.
Resolve any interpretation issues.
Consider strategic issues.
Review the file materials.
What facts are known about the claim?
Highlight any known problem areas.
What law(s) are applicable?
Formulate goals.

Goals
Formulating clear goals is the most important step.
Collaborative process.
Carefully consider law and facts as they exist, not as you wish they were.
Always consider strategic issues.
Goal is to “win” … right?

Redefining “Winning.”
What does it mean to “win”?
Get a verdict? Make law? Show conviction? Resolve uncertainty? Eliminate risk?
Counsel and client should discuss and agree on this before proceeding with the litigation.
This discussion should frame your goals.
Be realistic.

Goal one: Get rid of the Dogs!
Recognize the problematic cases.
Fully understand why they are problematic.
Focus action to quickly resolve the dog cases as favorably as possible.

Implement strategy
Formalize plans and goals.
Ongoing communication required.
Formal (scheduled) and informal.
Periodic review and critical assessment of goals.
Consider changed case circumstances.
Track deadlines and tasks.
Includes in house managers.

The Resolution and Litigation plans.
They are not the same
Resolution plan: how the dispute will be resolved.
May contemplate settlement, motion practice, trial, arbitration or begging.
Litigation plan: how the case will be won in the courtroom if it really must be litigated.
Often key litigation events are part of the resolution plan.

Achieving goals
All effort should be focused on goals at all times.
Impediments to goal achievement - inside and outside - must be eliminated.
Pay particular attention to problem areas.
When in doubt ask clients.

Mocking it.
Mock arguments, trials, mediations and appellate arguments are VERY useful.
Focused preparation is key.
Do not be afraid to test arguments or themes early on in case.
It is often better to loose the mocks, especially the early ones.
Adapt and use what you learn.

Problem Areas
Corporate depositions.
Preparation must be thorough and timely.
Evaluate and plan for difficult areas.
Evaluate and plan for problem documents.
Comprehensive review of all contracts is necessary.
Consider strategic implications of subject matter.
Will deposition be videotaped?
What subject matter is fair game?
Be aware of recent case law re: scope of 30b6 etc.
Notice may NOT limit scope.

Problem Areas
Discovery
Have a plan that supports the goals.
If working within a defense group, have a mechanism to track progress.
E-discovery issues.
Know what your client has in place.
Know the rules.
REVIEW what you produce.
Have a mechanism to reclaim inadvertently disclosed material.
Any questions – talk to manager.

Problem Areas
CMOs
Make sure you can get done what needs to be done or fight EARLY for more time.
Carefully track deadlines.
Experts
Have the right ones.
Get them involved early.
Make SURE you have rights to use them if working within a defense group.

Problem Areas
Deadlines. Hit them.
There are multiple layers of review or authority within an insurance organization.
Make the manager’s job easier. You will get more work.
Writing.
Some people are better writers than others, use them.
Proof the work.
Well written work earns a solid reputation.
Allow ample time for manager’s review and revision. Some do, some do not.

Resolution
Ultimate goal is a commercially acceptable resolution.
Resolution may be imposed or negotiated.
Conduct a post mortem after resolution.
Consider what went wrong AND what went right.
Consider improve ments.

P.S.
NO cats were harmed during the making of this presentation.

Herding Cats Fabian Icci

by Rfabian1 on Dec 04, 2009

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