Of course you don’t want to micromanage how your outside counsel handles your organization’s litigation – after all, you hired them for their expertise – but if you’re paying by the hour, you do want to know that they are efficiently managing the litigation. Here are a few things to look for.
Does outside counsel use budgets to aid in litigation management? While firms pushed back in the past, now they are recognizing that budgets can also serve as project management tools and foster regular communication and collaboration with you, their client. Budget variances can be a matter of timing or unanticipated events, or they may raise a red flag for issues that need to be addressed in how the matter is being conducted or how costs and resources are being managed. For larger litigation, budgets at the phase or even phase and task level can be particularly effective project management tools.
Is your outside counsel using the right level resources for specific tasks? There are some tasks that are better allocated to paralegals or junior associates and some that are more appropriate for partners. A firm’s use of the right resources on the work they do for you can make a big difference in your bottom line.
Is there continuity of team members throughout the course of the litigation? For that matter, to the extent that a law firm handles multiple matters for your organization, is there a consistent team that works on your litigation? Consistency, to the extent possible or appropriate, minimizes the need to reeducate new team members and ensures that team members understand your guidelines and positions, know your preferred positions on issues that transcend multiple matters, and have an idea what work from prior matters might be reused.
Early case assessment
Is your counsel taking a good look at the case early in the litigation or are they simply handling discovery in a reactionary manner? Performing some form of early case assessment can help guide decisions for the remainder of the litigation, such as whether and at what level settlement would be appropriate, which “hot button” issues to vigorously pursue or defend, and how to prioritize future discovery in the matter.
Is counsel using the right resources for discovery? That might be an external provider with whom you have a preferred relationship, your internal discovery team, or the firm’s resources, but the firm should be following your guidelines and taking into consideration the cost to you and the resources’ experience and expertise for the job. Is counsel considering the use of appropriate tools, such as analytics, if they may improve cost efficiency or accuracy? Since discovery is the most expensive part of a lawsuit, it makes sense to pay close attention to how counsel handles it and provide guidance regarding the discovery parameters that are acceptable to you.
Technology to tie it together
Modern litigation includes many moving pieces. Is your counsel taking advantage of available technology to keep track of all the information related to the case? Having everything in one place and easily accessible saves the firm time and effort, ultimately saving you money. And even though firms may do their best to maintain consistent teams for your work, they have turnover just like all employers, and knowledge (including knowledge about your matters) can be lost when employees depart.
Fortunately, law departments have access to tools that can keep track of the myriad details involved in a complex case and keep that information available for other litigation, as well. Allegory, for example, facilitates identifying, connecting, and retrieving all the key activities and evidence of a litigation matter, linking together in one place everything the law firm team is doing. It can be integrated with document production to capture and leverage important key text, admissions, and arguments.
You and your outside counsel should ultimately be on the same page – you both want the best litigation outcome at a cost that is fair to both of you. When a firm manages your litigation well, you save money and their team is able to efficiently focus on the merits of the case, gaining your confidence and freeing them to take on more matters.