Once upon a time, a client facing business litigation began by having a conversation with the company’s trusted outside legal counsel. The trial lawyer, drawing upon deep insights into the company’s business gained through years of close collaboration, listened carefully and immediately identified where further inquiry was needed. After some friendly discussions with the company’s most knowledgeable executives and a review of a file containing the few relevant documents, counsel unveiled to the client a brilliant case strategy that outlined a clear path to a successful resolution.

Of course, like most stories set “once upon a time,” this scenario may have been more aspirational than real. But in today’s real world of complex, burdensome and high-stakes electronic discovery, even this fantasy has been all but forgotten.

Because of the substantial costs to preserve, collect and review potentially responsive electronic data, and because of the risk of serious sanctions for any significant error in this process, many in-house counsel have shifted the early case-assessment focus from strategy evaluation to data assessment. Trial counsel now compete with both e-discovery vendors and specialized counsel for the client’s time and resources in the early stages of litigation. This shifting focus threatens to undermine opportunities for trial counsel’s meaningful participation in early case assessment and to deprive the client of the full benefit of the trial lawyer’s experience and judgment.

Early case assessment remains a critical part of representing the client in litigation and requires the personal involvement of trial counsel. Cases are won by identifying clear litigation objectives and then building a litigation plan focused on achieving those goals. When early case assessment instead becomes early data assessment, the cart is now before the horse and, despite a flurry of activity, the case will go nowhere. In an era of limited litigation budgets, in-house and retained counsel must work together to ensure that the time and resources required for early data preservation and assessment do not squeeze out the work required for early strategic assessment.

TOWARD EFFECTIVE COLLABORATION

The good news is that these two tasks — management of e-discovery and trial strategy — do not have to be pursued on separate, conflicting tracks. Effective collaboration requires setting some ground rules at the beginning of the engagement and reaching agreement that following these ground rules will deliver value for the company.

At the risk of belaboring the obvious, the first step in preserving trial counsel’s role in early case assessment is simply identifying the trial lawyer responsible for the case. Trial counsel is not a law firm or a practice group; trial counsel are the human beings who will stand before the court to address the judge and jury on the client’s behalf and who assume personal responsibility for preparing and trying the case. Of course, the vast majority of civil disputes are resolved without trial, but it is an often-repeated maxim that the best way to avoid trial is to be trial-ready. The first step in trial preparation is selecting trial counsel and engaging the trial team for early case assessment.

Next, a senior trial team member should interview each of the key fact witnesses at least briefly as soon as possible and before e-discovery custodian questionnaires or interviews are commenced. At the most obvious level, this approach helps to ensure that the company’s initial data assessment will actually cover the relevant topics to avoid costly do-overs.

Of perhaps greater importance, however, is preserving trial counsel’s prompt access to the witnesses and ensuring trial counsel’s control over communications with important trial witnesses. The communication that occurs during the initial meeting between outside counsel and the witness provides invaluable insights for trial counsel’s case assessment and may substantially affect the witness’s future willingness to cooperate, share insights about the parties’ dispute and follow the direction of trial counsel at critical moments in deposition or at trial. The attorneys tasked with e-discovery custodian interviews often are the exact opposite of what is needed to build this relationship — they are specialists with a narrow technical proficiency who have no role in broader case assessment or strategy development, who make requests of the custodian that are often perceived as unduly burdensome and unrelated to the “real” issues in the case, and who will disappear from the team as the case proceeds to depositions and trial.

When custodian surveys begin, a member of the trial team should participate in the e-discovery custodian interview of any likely deponent or trial witness. Witnesses who have had no opportunity to communicate with outside counsel may provide information or raise questions or concerns about the litigation that trial counsel will need to hear and explore. These witnesses will also look to outside counsel to explain how their knowledge of the dispute relates to the company’s defenses and to explain “what this case is all about.” This dialogue is a critical part of witness preparation that happens long before depositions are scheduled and cannot be entrusted to an attorney or consultant who has only a limited understanding of the case and no long-term role in deposition or trial preparation.

Next, trial counsel should include as part of the initial case assessment for the client an individualized assessment of data preservation for each key custodian. This step is an important part of the process, to ensure that trial counsel’s insights are reflected in the design of the litigation hold, especially for potential “rogue” custodians. These custodians can take many forms — an employee who fears personal blame for the events at issue; an employee who fears unrelated personal misconduct may come to light; a disaffected employee who bears a grudge; or even an overzealous loyal employee who thinks he is protecting the company’s interests — but each may warrant additional data evaluation and preservation.

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.

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. He can be reached at mprewitt@schiffhardin.com.

VIEW FROM THE TRENCHES
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