Techniques for Expediting and Streamlining Commercial Litigation: Take 3*
In handling complex litigation,
lawyers and their clients should be guided by two principles, both of which
reduce expense without sacrificing chances for success. First, less is best. Excess discovery is not just non-productive, it is often
counterproductive. It removes the
element of surprise at trial, forces the opposition lawyers and witnesses to
get prepared, and often takes the eyes of the lawyers who engage in it off the
ball. The lawyers who don’t educate the
opposition are better able to handle surprise at trial and are better off
retaining their advantage.
Minimal discovery, however,
doesn’t mean being ill-prepared. It
means the trial team prepares by means other than formal discovery, such as
thoroughly interviewing the client’s employees and the other side’s
ex-employees, organizing all documents and information chronologically to
understand the complete picture, and conducting jury simulations. It also means taking necessary discovery
before the other side does. Take the
first depositions, and depose the top executives first—before they can get
their stories straight. Extensive
document discovery is not necessary to do this.
Counsel should focus on their role
as stand-up trial lawyers, not discovery litigators. Everything they do should
be designed to prepare them to persuade a jury, judge, or other decision-maker.
Handling contingent fee and flat
fee matters for plaintiffs encourages good habits in trial team members. Since
preparation in these cases is on their own nickel, they learn how to economize
and to insist that everything they do be potentially
outcome-determinative. The good habits
the trial team develops from this contingent fee work carry over to flat fee
and hourly work and result in lower costs to the client.
Teamwork on the big case (or group
of cases) is essential. At the beginning
of a complex commercial engagement, the lead lawyer should assemble the team
that will try the case or cases. A trial
team should rarely consist of more than one or two partners, an associate, and
a legal assistant. Although more than
one trial team will be necessary in cases that go to trial at the same time,
each team should be similarly lean.
Continuity of the core trial team
is also vital. The same lawyer who leads
the team at the start should lead it at the trial. The other lawyers and the legal assistants
who handle discovery and briefing ought to have key responsibilities
throughout, including at trial. And the
same client representative, whether lawyer or business person, needs to oversee
the case from outset.
Counsel should candidly discuss
staffing with the client up front and try to assign to the case lawyers with
whom the client feels comfortable and whose abilities fit the needs of the
case. Each lawyer will ideally be strong
both in book lawyering and in courtroom lawyering. It’s
important to have both strengths on the team even if different lawyers have
them.
The lead lawyer should insist on a
one-lawyer-one-task rule. Except in the
case of the first crucial deposition or dispositive
hearings, two or more lawyers should rarely be assigned to cover a litigation
event.
The lawyer in charge manages
preparation by use of a task assignment memo, revised weekly, and a regular
weekly team meeting or conference call.
Task assignment memos specify the responsible team member and the due
date. These memos are numbered sequentially
and revised after each weekly meeting.
Interoffice conferences among trial
team members are necessary for effective communication and to avoid duplication
of effort. But they are wasteful if the
same message must be repeated. By
focusing all interoffice communications into a regularly scheduled meeting or
conference call, unnecessary jawboning among team members at other times can be
avoided. This also allows the client’s
in-house counsel, co-counsel, and others who are invited to attend to keep up
to date.
If a member of the team talks to
the client, co-counsel, or opposing counsel, he routes a call report by e-mail
to other team members.
All correspondence coming into the
lawyers’ office goes first to the partner in charge and then is routed by her
to other team members on a need-to-know basis. All members of the team,
including co-counsel and in-house counsel, communicate by e-mail.
Next month: Discovery, discovery
disputes, and trial preparation.
* The authors have adapted this section from How Susman
Godfrey Handles Cases, http://www.susmangodfrey.com/HandleCases.html.