Meaningful Litigation Plans

You can try all the fancy fixes to lower your litigation costs that are the current rage. But there are no quick fixes. Like a baseball player who is fighting to get out of a slump, getting back to the fundamentals is the key to developing a meaningful litigation plan.Next article: Best discovery practices that avoid discovery becoming a costs black hole.

Stewart M. Weltman is the principal in the Chicago-based Weltman Law Firm. He can be reached 312-606-8756 or [email protected].

This is the fourth in a series of articles discussing how in-house counsel can better manage litigation matters.

Once you have assembled your outside litigation team, selected who is best equipped to manage outside counsel on your behalf, and arrived at your fee arrangements, the real work begins. You must develop a cogent litigation plan and then, most importantly, execute it. Sounds easy, but for many of you who have had seemingly well-designed litigation plans and budgets torn asunder on the rocks and shoals of real life litigation, finding the Holy Grail might seem easier. Fret not ' there is a pathway toward developing more meaningful litigation plans. To do so, however, will require most in-house counsel to change theirs and their outside counsel's attitude and approach to litigation.

Because most companies are usually defendants, most litigation plans are structured around the various desired winning endpoints that can result in the termination of the case prior to trial (e.g., motion to dismiss, summary judgment etc.). Few cases are tried these days because those cases that aren't ended via a pre-trial endpoint usually settle. As a result, most lawyers litigate with an eye toward settlement rather than trial. In fact, many defense teams view having to go to trial as a failure of sorts.

The end result is that more and more outside “litigation” partners who practice primarily on the defense side (other than personal injury lawyers) have never tried a case, let alone first-chaired one. Lawyers who know how to try cases and understand what it takes to get ready for trial are, unfortunately, becoming a rare breed, particularly in the rush to hire large defense firms for companies' bigger litigation matters. This is going to become a bigger and bigger problem for these firms as fewer and fewer lawyers among their ranks are trial savvy, but it is also a big problem for you.

Because fewer and fewer litigators actually know what a trial is about, it comes as no surprise that most litigation plans and budgets focus upon getting from one point to the next with an eye toward a pre-trial victory or settlement. Trial preparation or even thinking about what the trial might look like is put off to the last possible minute under the pre-textual banner of not incurring this expense until absolutely needed ' when in many instances it is really the fear of the unknown.

Failing to think about and prepare for trial from the outset is a critical mistake. Not only does it expose you to greater risk of failure but it also results in greater costs, even if you and your outside counsel have every reason to believe that the case will never be tried.

Prepare As if Your Case Is Going to Trial

After having litigated and tried cases with and against many of the country's top complex litigators over the last 29 years, I know that there is one common denominator that we all share. From the first moment we are engaged in a matter to its end we are continually analyzing a case with a view toward trial ' even if we believe that there is a strong chance that a pre-trial resolution of the case is the most likely endpoint. The best lawyers know that the straightest line to a favorable settlement is to forget about settlement and prepare as if your case is going to be tried.

Why? Because analyzing and preparing your case with a trial mentality from the outset keeps the team focused on what is needed to win and this not only is the best pathway to optimal results, but its beauty is that it also lowers litigation costs. Preparing from the get-go as if a case is going to be tried is a truth serum. It forces you to continually focus on what is essential to your case and what is not. Costly larks or pursuits down dead ends are less likely to occur because your team has a shared total case vision.

If you and your outside counsel have not been doing this as a matter of course, then you now know why your litigation bills have been so high and why your results may not have been as robust as you expected.

Develop a New Trial Mentality

First and foremost, failing to prepare for trial from the outset greatly exposes you to litigation risk in both your strongest and weakest cases. There are times when even dead bang winner pre-trial motions, in your strongest cases, do not get granted and the next milepost on the horizon is trial. When this happens and your team hasn't been preparing for trial from the outset, you are now confronted with the following Hobson's choices: 1) engage in a wasteful and costly scramble to get ready for trial; or 2) settle.

How many times have you been confronted with settling a seemingly strong case, after summary judgment was denied, for more than you initially thought because your outside counsel's estimate of the cost of trying the case was prohibitive? In most instances, it is not the cost of getting ready for trial that is the culprit, but the fact that over the course of the litigation, attention to trial preparation has been given short shrift. There is no reason why you should ever be put in this vulnerable position and any counsel who says that the cost of trial is the reason to settle a strong case should be fired, or better yet should never have been hired.

Moreover, even if your case is weak and you intend to settle at the earliest opportunity, you still need to prepare as if you will have to try the case. If your side is not preparing to go to trial as the litigation progresses through its various stages, you will be at a distinct disadvantage at the settlement table, particularly if the other side knows this to be the case or, worse yet, you are confronted with an opponent who is demanding far too much to settle.

A Trial Mentality Saves Costs

But, you might protest, “I have seen the legal bills that my outside counsel run up when they are preparing for trial. How can you possibly say that preparing every case as if it going to be tried is less expensive over the long run?” The simple response is that we are not talking about the usual scenario, where summary judgment is denied and the mad dash to prepare for trial commences because a trial date is looming on the near horizon. This is an unacceptable situation that happens all too often. It is no different than attempting to cram for an exam the night before. No. What we are talking about is an approach and attitude that requires the entire team ' including in-house counsel ' from the inception of the case to its end to focus on what is needed to win the case at trial. When you arm yourself with this focused total case view from the outset, what is unnecessary becomes clearer and can be shed before time and money is wasted.

Trial and Litigation Plans

The best way to jump-start any trial plan is to early on, immediately after the initial case investigation/assessment has been performed, meet with your litigation team and collectively develop your best-case story. A best-case story is sort of a summary opening statement that in simple terms tells the listener not only what your case is about, but also why you should win. Think of it as what you would say to a friend if she asked you what the case was about. Say it out loud. It should last no more than a minute or two. The shorter and simpler the better. How does it sound? What would your judge think of it? What about laypersons? Look at a set of potential applicable jury instructions. How does your best-case story fit into the anticipated language that will be read to the jury?

Once your team has developed your best-case story (have it transcribed by the way) it is now time to give it a test run and, through this process, your litigation plan actually falls into place. Is your best-case story based upon the facts as you currently know them? What evidence is already in hand (documents or witnesses already known) and what evidence will be needed to establish these facts? How do you anticipate obtaining this evidence and what admissibility problems do you foresee?

Write down the answers to these questions and you have your initial trial plan. You now know in concrete terms what you need to do to prevail at trial and, most importantly, you and your outside counsel have a written record of this initial consensus position. Moreover, developing a litigation plan falls into place quite easily once you and your outside counsel reach this consensus.

You now know where you need to marshal your forces to optimize your best result, be it via a motion to dismiss, summary judgment or trial. You also know what gaps you need to fill in over the course of the litigation. With regard to every proposed initiative, whether a motion to dismiss, a document request, or a proposed deposition, the question can and should be asked, “How does this fit into and further the development of our best-case story?” Moreover, developing a best case story from the outset, allows you to better monitor the case and understand when and whether mid-course changes are needed, because as the case progresses the key question that you and your outside counsel will always have to address is, “How does this development affect our best-case story?”

Furthermore, since the most likely endpoint, short of trial, for most defense matters is summary judgment, discovery is almost always a necessity. But discovery can also become a litigation cost black hole ' particularly where, as is usually the case, there is no concrete trial theme that can be used as a guide for the litigation team.

Too many times, discovery is conducted with a vacuum cleaner approach ' seeking and reviewing all documents and taking the deposition of anyone remotely connected to the case, all with the intention of putting together the jigsaw puzzle if and only if trial becomes a necessity. This commonly employed discovery modus operandi is a key reason why trial preparation becomes cost prohibitive by the way.

While the conduct of discovery will be discussed in greater detail in the next article, suffice it to say that when you are armed with a best-case story, discovery can be conducted with greater precision because you know what you have and what you need to get your case ready for summary judgment and trial.

Finally, you should also make a serious attempt to approximate what you believe will be the other side's best case story and go thru the same process that you would with yours (e.g., what evidence they need, etc.). No matter how distasteful this is and no matter how much you believe that their case lacks merit, getting inside their head is the best way to defeat them because you will better anticipate their moves if you do.

Rest assured, adopting a trial mentality and achieving a consensus so that each particular initiative is keyed to or furthers the development of your best case story gives you, in-house counsel, a touchstone from which you can proactively participate in calling the shots with your outside counsel. This powerful technique ' while requiring many in-house counsel to relearn new or revive dormant skills ' will necessarily result in lowering your litigation costs and produce better results.

You can try all the fancy fixes to lower your litigation costs that are the current rage. But there are no quick fixes. Like a baseball player who is fighting to get out of a slump, getting back to the fundamentals is the key to developing a meaningful litigation plan.Next article: Best discovery practices that avoid discovery becoming a costs black hole.

Stewart M. Weltman is the principal in the Chicago-based Weltman Law Firm. He can be reached 312-606-8756 or [email protected].