Litigation Best Practices—Lessons from Risk Manager of the Year

Communication

Communication from outside counsel is key. The best outside counsel epitomize the old Holiday Inn ad tag-line, "No surprises." Litigation management is a dynamic setting, with circumstances constantly changing. New facts come to light—some helpful to your case, others detrimental. A defense expert craters under withering deposition questioning. A bad document comes to light that nukes your defense. The plaintiff and her attorney have a falling out and she fires her counsel. The judge rules that a key expert's opinions are limited in an unexpected way.

To paraphrase a popular bumper sticker, "Stuff Happens" in managing litigation. Sometimes it's good stuff; sometimes it's bad stuff. Bad stuff is not necessarily your counsel's fault, but suppressing or delaying communication of it may be.

Competency

Competency is a bedrock requirement for outside counsel. At the hiring stage—if not before—the litigation manager must verify that the chosen counsel has deep expertise in the area of law that the case involves. This includes the number of prior similar cases, references in that field, having written articles or speeches in that niche, whether it be trucking accidents, insurance agent errors and omissions (E&O), or slip-and-fall claims.

The judging process doesn't end there, though, in assessing outside counsel. Advocate goes a step further by giving each law firm an overall score, putting it in a chart, and tracking performance for all 12 of its outside firms. It shares this chart with those firms.

There is little use in going to the trouble of rating firms unless the litigation manager shares those results with the lawyers being assessed. Of course, this is no problem when the report card is favorable. It is awkward, tough, when the results are sub-par.

No one enjoys giving critical feedback. For many clients—whether insurers or self-insureds—it is easier to quietly transition case referrals to another firm and "drop" the incumbent without the latter ever being aware of its de facto "firing." This may not be best practice, however. Holding firms accountable by sharing (constructively) critical feedback and perceptions is an awkward but occasionally necessary aspect of litigation management. How else can they hope to improve?

If a firm takes the feedback in stride and promises to improve, perhaps you can get by with simply firing up outside counsel in lieu of just firing them. If the firm blows off the feedback, that speaks volumes and clears the way for the litigation manager to find alternate firms for future assignments. How a firm responds to critical feedback can be the fork in the road that tells you whether the relationship is salvageable or not.

Compliance

The third C is compliance—guideline compliance. At the courtship stage, virtually all lawyers and firms will assure you that your guidelines pose no trouble. In practice, real assignments often expose these assurances as empty promises. Firms that do not comply with your litigation guidelines are on thin ice. At the interview and selection stage, share your guidelines with prospective counsel. A threshold issue is whether or not the attorney or firm will commit, preferably in writing, to adhering to such guidelines. Getting buy-in up front can avert haggling down the road. If the firm cannot commit to guideline compliance, that does not make them a bad firm—or attorney—just not a good match for you.