Winning Litigation While Maximizing Certainty And Cost-Effectiveness

Tuesday, December 10, 2013 - 11:23

The Editor interviews Michael C. Lynch, Chair of the Litigation Practice Group at Kelley Drye & Warren LLP.

Editor: Congratulations on being named chair of the Litigation Practice Group at Kelley Drye. Please tell us a little about your professional background and how you came to this role.

Lynch: Thank you very much. It’s an honor, and I’m very excited about this role. Throughout law school, I was set on becoming a prosecutor, and so afterward I went to the Manhattan DA’s office, which was my dream job. I acquired fantastic experience: I learned how to litigate very aggressively and intelligently but with a lot of integrity. I tried many cases there, so when it came time to join a firm, Kelley Drye appealed to me because it was and is known for actually trying cases. 

Kelley Drye also appealed to me because I believe the firm litigates the way I was taught at the DA’s office: with integrity and efficiency, while treating every case from its inception as though it were to be taken to trial. I quickly realized that my experience at the DA’s office complemented the litigation practice at Kelley Drye at a time when more and more in-house legal departments mandated that outside counsel more effectively manage litigation, in terms of outcome and cost, and do so with better calculation of the business interests implicated by that litigation.

One of our major clients recently told us that a lot of attorneys call themselves “trial lawyers,” but that we would be shocked at how many times those same attorneys have told her she had a great case, only to turn around and urge her to settle quickly when the case was about to go to trial. She noted that we at Kelley Drye, on the other hand, take cases to trial and win them – which, she said, sets us apart.

Editor: What do you see as the group’s vision currently, and do you have a direction in which you would like to take the group?

Lynch: The litigation environment is certainly interesting today; things have changed dramatically in the past few years. Everyone is talking about litigation risk – that is, the cost and uncertainty of litigation. For a long time, clients were willing to accept a great deal of this risk as an inevitable aspect of litigation.  Law firms did not have to be as efficient or strategic as they could be, and sometimes disputes meandered – but that didn’t do their clients any good. Of course, litigation outcomes are always uncertain, but these days, clients expect a greater degree of certainty, particularly with regard to predictable litigation costs, and so there is greater pressure on law firms to be efficient.

To that end, we are developing real business partnerships with our clients and closely aligning our interests with theirs. My predecessor in this role, Bill Escobar, is also one of my mentors. He remains one of the best litigators I know. Bill developed a pricing model for the firm that allows us to create alternative fee arrangements, facilitating both greater cost predictability and, as a result, closer alignment of everyone’s interests.

As for my own vision, I’d like to more broadly implement this powerful tool to benefit our clients as well as the firm; it’s important that law firms succeed as well. We have to keep in mind that litigation is not just about saving costs, it's about achieving the most successful outcomes on behalf of our clients. And my most important job is to continue our long history of winning cases – whether that is at trial or through a negotiated settlement.

Editor: Does early case assessment feature prominently in the cases the firm handles?

Lynch: It definitely does. I actually learned about early case assessment at the DA’s office, where every six days we had to rotate through something actually called the Early Case Assessment Bureau (ECAB). This is where new criminal cases enter the system.  ADAs interview the witnesses, review paperwork and draft complaints. The time frames in criminal proceedings are very short. Right out of the gate, you need to line up all evidence. You must put in your indictment before an alleged perpetrator is released from prison – or your case becomes more difficult – and interview witnesses right away. Two or three days after your turn at the ECAB, you’re back at your office and literally ready to try your new cases then and there.

That’s an extremely efficient way to manage cases, and we are applying these same principles at Kelley Drye in the civil arena. We’re deploying technology to get a better sense of the universe of documents and witnesses early on in a case. It’s critical to determine your goals for a case and start working on them right away.

Editor: Please tell us more about how you use technology in your practice.

Lynch: We use a variety of tools that improve predictability in certain areas and facilitate greater cost certainty, and it’s made a big difference in helping us align our interests with those of our clients. In addition to this investment in the technology, we’ve also built a litigation support team and a practice management support team that enable us to find the best products for our clients and cases. The most useful tools give us a sense of the evidence in the case very early so we can plan for it properly from the beginning. Removed from the equation is the surprise of a damaging email or negative testimony down the road.

That said, at the end of the day, we still have to work hard; we still have to strategize better than the other side; and we still have to win. We may be using new tools, but there is simply no replacing creative thinking on the part of the litigation team.

Editor: What are some of the trends in litigation at the moment?

Lynch: Class actions have been heating up, especially in the consumer products space, particularly with regard to the Telephone Consumer Protection Act (TCPA). The firm has great expertise across all of its offices in this area, and so I often work on these cases with Kelley Drye lawyers from various offices, which I find very rewarding. Currently, I’m working on a case with a partner in Los Angeles. In addition, we recently had a class action settlement approved over a very aggressive objector – it was a very hotly litigated issue involving claims of misleading marketing practices, unjust enrichment, breach of contract, and violation of the New Jersey Consumer Fraud Act, but we prevailed. I worked with my colleagues in our New Jersey office on this case, which I always enjoy.

As far as other areas, obviously there’s been a huge uptick in IP-based litigation in trademark and copyrights but more dramatically in the patent space. There is much discussion about what’s driving this, and I’ll be interested to see where Congress comes out on patent troll legislation. Meanwhile, the courts have taken pretty aggressive actions against non-practicing entities (NPEs) and have demonstrated they have little patience for litigation abuse, and I believe this trend will continue. Patent litigation is another area in which Kelley Drye has had notable success.

Editor: I understand you undertook the topic of communication between in-house and outside counsel in a seminar this past year. Would you share with us a few best practices for maintaining a productive and collaborative partnership?

Lynch:  The key is always going to be trust between the client and the law firm, and trust is crucial to in-house/outside law firm relationships. Trust is a very difficult thing to build, as it can develop only over time and only with success. I believe my role as outside counsel is to tell clients what they need to hear rather than what they think they want to hear, so open and frank discussions are critical. My advice would be to always describe the situation as accurately and candidly as you possibly can. When presenting the case to the client, explain to them the weaknesses as well as the strengths, and set reasonable expectations from the beginning.

The next step, of course, is to communicate constantly. One of the case management tools we use enables me to keep an eye on the time that’s being spent throughout the course of the month. The typical law firm billing model is monthly billing, but a lot can happen in 30 days, and cases can get away from clients, and costs can escalate quickly. But now I can see on a day-to-day basis how much time people are spending on a matter and keep better control of those hours. When some unexpected litigation event does come up – which we all know happens – I can identify it quickly and immediately have a conversation with the client about the possible commitment of additional resources, rather than waiting until the end of the month only to discover that the bill we are sending is much higher than anticipated.

Editor: From your seat at Kelley Drye, can you spot any trends in the legal industry as a whole? Where do you see the relationship between in-house and outside counsel headed?

Lynch: Over the past few years, I’ve heard that, with all the budgetary pressure they are under, clients have done a fair bit of “shopping around” – looking for the best deals they can get on certain cases. That process may yield some short-term gains, but long-term gains are few.

To my point, I’ve been hearing that many clients feel they are working with too many law firms – that it’s unwieldy, that the quality of the work is not consistent across their entire litigation portfolio because too many different people are involved. So, some clients are now considering narrowing down, getting back to a core group of law firms to represent them in all of their litigation. There is considerable long-term cost benefit with this model because over time, the attorneys working on cases already know their client’s business and understand its goals. They don’t need to ramp up on learning about the client or the business. Greater consistency and predictability can be realized this way. Cost savings and efficiencies can also be achieved thanks to the economies of scale that arise from having one firm – rather than several – represent a client across a wider swath of litigation in its portfolio. Clients are getting back to basics and choosing to partner with three or four firms that understand who they are and what they are trying to achieve over working with 25 law firms that are competing with each other over price point.

Editor: Do you find that your clients capitalize on the many offices that Kelley Drye has?

Lynch: The national footprint at Kelley Drye is extremely helpful to our clients because it allows them to take advantage of our expertise in a variety of different jurisdictions. For example, with the case I have pending in California at the moment, it is extremely helpful to have a partner who’s been practicing there her whole life – who knows the courts and the judges and who knows her way around the courthouse. Having expertise on the ground in multiple jurisdictions is a hallmark of Kelley Drye.

 

 

Please email the interviewee at mlynch@kelleydrye.com with questions about this interview.