Successful Partnering Strategies Which Facilitate Successful Law Department Management

Monday, May 3, 2010 - 00:00

Effective partnering between inside and outside counsel enables corporate law department managers to improve the quality and reduce the costs of legal services provided to corporate clients. The definitive source of expert guidance on partnering is the four-volume, 7,000 page treatise entitled Successful Partnering Between Inside and Outside Counsel, which is a joint project of West and the Association of Corporate Counsel (ACC). This critically acclaimed treatise contains comprehensive coverage of numerous strategies that a corporate law department can implement to maximize the value of legal work for corporate clients. The treatise provides detailed analyses of the advantages and disadvantages of each of these strategies as well as concrete, practical guidance for implementing each strategy.

The 275 authors of Successful Partnering include the general counsel of more than 80 Fortune 500 companies and the senior partners of many major law firms. The Editor-in-Chief is Robert L. Haig, a partner at Kelley Drye & Warren LLP in New York.

The 85 chapters in the treatise cover all aspects of corporate law department operations and management, 30 substantive law subjects, and all aspects of the relationships between inside and outside counsel. Each chapter in the Successful Partnering treatise is updated every year. The updates cover all of the important developments during the preceding year in the provision of legal services to corporate clients.

This article discusses partnering techniques and methodologies analyzed in six chapters of the Successful Partnering treatise that law department managers can use to enhance the benefits from their company's relationships with outside counsel. Comprehensive discussion of each of these, and many other, partnering strategies can be found in Successful Partnering .

Evaluating Legal Risks And Costs With Decision Tree Analysis

One challenge that in-house counsel and outside counsel share is the ever-increasing expectation of business clients for legal service providers to "add value" - that is, to justify the ever-increasing costs associated with their services. The need for providers of legal services to adopt a cost-benefit approach is particularly fueled by the increase in legal costs and the magnitude of risks presented by litigation today. This chapter discusses and contrasts "intuitive" and "quantitative" models for making decisions about which risks to take and which costs to incur in the corporate legal environment. The primary focus of the chapter is on the application of quantitative analysis to litigation, the most common area of risk management encountered by corporate counsel. Although litigation is the primary focus, the principles and practices discussed are equally applicable to other aspects of the legal function. The particular quantitative model described in this chapter is a form of decision tree analysis called Litigation Risk Analysis. The chapter examines three primary tools for analyzing risk in the litigation context: the Decision Tree, the Sensitivity Analysis, and the Dependency Diagram. The chapter discusses how in-house and outside counsel can partner in using these tools to promote a better understanding of the key areas of litigation uncertainty and the factors primarily influencing them, and a more realistic assessment of the potential range of litigation results.

Communication Methods And Skills

Too often a relationship between inside and outside counsel begins and then lurches forward, propelled by unpredictable events and imminent deadlines, without the parties giving any considered thought to the most basic question: How will counsel communicate about the terms, substance and developments of the engagement? This chapter examines and explains the communication skills that are the foundation for any successful collaboration between inside and outside counsel. First, the chapter sets forth general principles for ensuring that, in any matter or engagement, inside and outside counsel are able to communicate effectively. The authors emphasize laying the groundwork for efficient communication by understanding the other lawyers' roles and duties and reaching agreement on the overall strategy and game plan. The chapter then focuses on certain "key" communication events and topics that often arise in a relationship between inside and outside counsel. The authors offer advice on how best to avoid problems and pitfalls in these areas. In particular, the chapter focuses on communications regarding litigation risk, budgeting, and staffing, and suggests the use of "post-mortems" to improve communication between counsel in the future. This discussion is followed by an analysis of specific communication habits and skills - including listening skills, reports to clients, and communications between inside and outside counsel and a client's business personnel. The chapter includes analysis of the effective use of meetings, written communications, and less traditional communication avenues and techniques. The authors also describe the challenges and rewards of using various new communication technologies such as video conferencing and extranets. The chapter concludes with discussion of the results of an informal survey of inside counsel on topics including communication methods and styles. The authors use these results as a basis for suggesting ways to improve the flow of information between inside and outside counsel.

Coordinating Counsel

The coordinating counsel coordinates similar tasks, usually in litigation, being performed by other outside lawyers and acts as a common communications point. The chapter discusses how successful use of coordinating counsel can result from true partnership of in-house counsel, national or regional coordinating counsel, and local counsel, acting as one virtual law office. As the authors note, the keys are early involvement of coordinating counsel; clear goals, strategies, and divisions of responsibility; and candor, communication, and respect among the participating lawyers. The authors also observe that a coordinated approach can lower corporate legal costs by reducing duplicative efforts by expensive outside counsel and allowing economies of scale.

The chapter addresses the main objectives and pitfalls that inside counsel should consider when determining the need for coordinating counsel. For example, the chapter notes that coordinating counsel can coordinate defenses, assure that local counsel are aware of essential issues and arguments, marshal common resources, and maintain a repository of documents relevant to all actions. The authors provide insight into how a coordinated approach can reduce demands on the time of in-house counsel, allocate clear responsibility for strategy, and avoid inconsistent positions. The chapter emphasizes how coordinating counsel can partner with in-house counsel and outside counsel to attain better and more cost-effective results.

Determination Of Litigation Forum

Common throughout this chapter is the theme that the client, in-house counsel and outside counsel must work together from the very first stages of an anticipated dispute. The chapter demonstrates how in-house counsel can use the unique knowledge and experience of outside counsel to get the best results in this area. The authors recommend that as soon as the reasonable likelihood of potential litigation emerges, outside counsel should be consulted so that all opportunities are exploited to enhance the possibility that the client will ultimately find itself in a litigation forum that maximizes its opportunities for ultimate success. This chapter discusses the litigation forum as a significant and sometimes dispositive factor in the ultimate resolution of a case. It outlines the issues that impact the determination of that forum and identifies the legal and practical factors that the client, in-house counsel, and outside counsel should consider in approaching the topic generally. Whether plaintiff or defendant, any litigant must give careful consideration to where its lawsuit will be litigated and what opportunities exist for the defendant to change the forum that the plaintiff may have selected initially by the filing of its lawsuit. The chapter contains detailed discussion of critical issues that are raised by preliminary considerations such as "Does the client want to be a plaintiff or a defendant?," "Where will we litigate?," and "Who could the judge be?". Long before any lawsuit is actually filed, the authors advise that careful partnering among the client, in-house counsel, and outside counsel is crucial to the development of effective strategies in this area.

Settlement

This chapter discusses techniques that can be used by inside and outside counsel for negotiating, documenting, enforcing and challenging settlements, covering both the practical and legal settings in which settlements occur. The authors address partnering strategies for inside and outside counsel to achieve a settlement in line with the client's objectives while helping the client avoid a reputation as a "quick settler" of litigation. The chapter begins with understanding the client's objectives and strategy. It then discusses the techniques that can be used by inside and outside counsel to achieve these goals and carry out the strategy at the various stages of litigation from the inception through the appeal. Finally, it discusses enforcing the settlement and obtaining relief from the settlement.

The authors note that the decision whether or not to settle is a fluid concept that must be ever in litigation counsel's mind. To that end, this chapter contains in-depth discussion of the different considerations and concerns for inside and outside counsel to be aware of as the litigation progresses, including conducting discovery with an eye towards settlement, timing of the settlement, and how settlement affects the litigation budget. The authors emphasize how inside counsel can effectively manage litigation costs through candid communication with outside counsel, even to the point of insisting that settlement be considered early in every case where the risk of some loss seems clear on the surface. The authors also discuss how inside and outside counsel can partner to ensure that the decision whether or not to settle is made with all of the necessary information through the use of tools such as decision tree analysis, early neutral evaluation, and focus groups or mock juries.

Appeals

Appeals present an opportunity to retrieve the lost cause from the trash pile or to enshrine the victory as a permanent and final accomplishment. Treating the appeal as a separate proceeding, employing expert appellate counsel, and reevaluating the case based on its newfound status as an appeal can yield significant dividends for the client. Best results on appeal require significant cooperation among trial counsel, appellate counsel (whether within the trial counsel's firm or without), and the client. In-house counsel can perform a valuable service to the client in coordinating this team and ensuring that it works cohesively to maximize the results on appeal.

This chapter focuses on the management of appeals as much as on appellate procedure itself. The authors discuss how inside and outside counsel can work together to turn an appeal into a new litigation opportunity, and not just "another round" of the same litigation. The chapter also addresses the potential drawbacks of taking an appeal, such as the risk of making bad law which may be harmful for other cases or in other contexts. While outside counsel often has the primary role in drafting the brief and arguing the appeal, the chapter notes that in-house counsel can, and should, play an equally important role in the larger corporate strategic issues. Thus, the chapter contains detailed discussion of the special role that in-house counsel should play to partner with outside counsel during the appellate process.

More information about Successful Partnering Between Inside and Outside Counsel is available by calling West at (800) 344-5009 or online at www.west.thomson.com.