Finally, the client and trial counsel should set an early deadline for trial counsel to present an initial assessment of case strategy. Litigators work by deadlines, and the best way for in-house counsel to ensure that the logistics of e-discovery do not distract outside counsel from devising and implementing the company's case strategy is to give trial counsel a deadline that makes the strategic assessment as immediate and as pressing a concern as the adequacy of the company's litigation hold.
For cost-conscious in-house counsel, the idea of including high-billing-rate trial counsel as active participants in early data assessment, and to front-load trial counsel's strategic assessment into the first days or weeks of the engagement, may seem counterintuitive, and in the short term this approach may indeed be more time-consuming and expensive.
The client, however, should resist the temptation to exclude senior trial counsel from this critical phase of litigation. The company has retained experienced trial counsel because the company values the trial lawyer's unique qualifications to evaluate the company's witnesses, work with the witnesses to assemble the company's case, and prepare the witnesses to testify at deposition and trial. Tapping these skills at the core of the trial lawyer's craft at the earliest stages of the litigation will reap benefits for the company throughout the remaining life of the dispute.
VIEW FROM THE TRENCHES
We asked a group of litigators for their thoughts on the past year's biggest developments, their pet peeves, and their predictions for the next big thing for e-discovery.
• What's hot?
• What stinks?
• What's next?
Matthew Prewitt is a partner in the Chicago office of Schiff Hardin, where he concentrates in complex litigation. He also is an adjunct professor at Chicago-Kent College of Law, where he teaches a seminar in complex business litigation. Email mprewitt@schiffhardin.com.
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