Official Publication of the Minnesota State Bar Association

Vol. 60, No. 4 | April 2003
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How to Manage Litigation (Not!)
By Frederick Ramos

Litigation management continues to be a concern for corporations and their in-house counsel. Many articles on the subject have been published in the last year or so. Ignore them! What do the so-called pundits and practitioners know? It's like Barry Bonds trying to teach you how to hit home runs or Denyce Graves offering you voice lessons. The following is all you need to know about handling litigation.

Managing Expectations

Don't explain expectations up front when referring a file to outside counsel. Don't talk about rates, billing procedure, and how you expect the case to be handled. After all, we're all professionals and we should simply know these things.

Along these lines, don't create corporate case-handling guidelines or ask counsel for their engagement agreements. It's easier (and more fun) deciding things on the fly and never knowing what's going to happen next on a case.

If you have guidelines, don't adhere to them consistently. Your counsel loves the thrill of being caught off guard with a requirement you told them to ignore. And it makes you pretty important.

Make sure not to be available when counsel calls, not to return their calls or answer emails, and not to work with them in the handling of the matter. It's in their hands now -- they should do it all anyway.

Blow up at the firm once the budget -- that they requested be updated -- is exceeded. Their ongoing assessments as the case develops must be ignored and they must be held to their initial evaluation for all eternity.

Managing Expense

Don't look at bills. Just pay them, but only after letting them sit unattended for 60-90 days. It might offend the firm to question something (letting bills sit unpaid never does) even if the rates are incorrect, there are duplicate entries, and there are unapproved timekeepers working on the file. Reviewing an invoice might even give you additional insights on what is happening on the case -- and who needs that?

Don't look at the hourly rate -- it's the whole case cost that matters anyway. And never look at the whole case cost because (a) that's too much trouble and (b) every case is different and can't be compared to others.

Expenses are such trifles. They amount to such a small percentage of the bill, it is not worth looking at these, even if the firm is charging higher than the agreed rate for expenses or charging for disbursements they have agreed are not going to be billed.

Who needs receipts? Don't bother requesting receipts for expenses higher than a certain amount, even though your company's own accounts payable department requires those receipts from you. By looking at receipts, we found we were billed for, among other things, a law library fine for an overdue book, parking tickets, tips that equaled the amount of the meal, and lunches brought to the firm on a regular work day (billed as "working lunches").

Use your company's procurement services to save expense? Don't waste your time! Why offer your business partners your company's internal resources that work hard and very often succeed at getting you the best rates? After all, everyone on an airline flight pays the same fare.

Managing Litigation

Get mired in the details. Spend as much time as possible on the intricacies of the case. Not only will your counsel appreciate your insights on things such as their writing style, but company management -- your client -- loves to talk about venue and judges, and not so much about general litigation strategy, expected costs, and ultimate outcome.

Don't mess around with early dispute resolution. Fight everything until the end. It takes too much time to treat matters individually. And talking settlement early shows the other side you are weak.

Don't review how your matters got into litigation or ever take steps to avoid litigation. Is that in your job description?

Never look for or try new ways to bill or handle matters. It's all some rigmarole, new-fangled, fancy-pantsy hogwash. Be an agent for the status quo.

Make every case personal. Clear, dispassionate analysis gets in the way of the rush of the job.

Managing Counsel

Hire firms, not attorneys. Whoever they put on the file must be right for the case (no prior explanation or approval is needed from you!). Make it a game to figure out the names of those new mysterious initials you see on the invoice.

Select counsel based on appearances. The law firm brochure and their reception area are just two critical factors in making your decisions. Don't forget the freebies they might throw your way.

No bad lawyers -- only bad results. So what if communication was sporadic, the matter was not handled in the manner that was indicated, and there was that "surprise" jury verdict? The best lawyers can't change bad facts.

Conversely, blame the lawyers for bad results -- especially when the facts, law, and venue are not favorable; counsel's communication has been consistent; and their assessments and recommendations were knowledgeable, reasonable, and, ultimately, accurate. What do they know?

Never change lawyers. After all, your current counsel is entitled to the work. Forever.

Change lawyers constantly. No need to have one or a few select counsel build expertise and experience with the subject matter of your litigation and the key individuals in your company (not to mention creating loyalty and a partnering approach with your firms). Continually train in new firms and pay heftily for the privilege!

With these in hand, you are sure to make some kind of difference to your organization and the counsel with whom you work. And don't worry about keeping current on developments. This article is all you need to know.

FREDERICK RAMOS is a Minnesota attorney with experience as an NASD arbitrator, civil and criminal trial lawyer, and attorney for a Minnesota corporation. He is a 1989 graduate of the University of Michigan Law School.