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It’s every general counsel’s worst nightmare: lawsuits that threaten the very existence of the company. So-called bet-the-company litigation can involve millions or billions of dollars and can assume various forms, whether it involves securities, antitrust, intellectual property, product liability or another area of law. When facing complex, high-stakes litigation, it’s essential for GCs to be prepared. So they often turn to top bet-the-company litigation experts for tips and strategies for effectively defending companies from potentially devastating suits.
The first step in forming a battle plan for bet-the-company litigation is assembling the right team. Internal team members should include the general counsel, the chief in-house litigation lawyer, an in-house lawyer who can manage the litigation on a day-to-day basis and a senior businessperson responsible for the business to which the litigation relates.
Stroock Partner James Bernard advises companies to also appoint a key discovery point person with deep knowledge of the company’s IT and computer systems. Designating this person as a member of the core team can help eliminate discovery-related headaches down the road.
“Too much resources, time and money is often spent defending discovery battles over the adequacy of document collection and preservation efforts,” Bernard says. “Having a person in-house who is dedicated to the task and who knows what they are doing is invaluable as the litigation progresses.”
As for external team members, GCs must appoint outside counsel that have successfully managed and litigated complex cases.
“The general counsel must be fully confident in lead counsel’s professional skills, litigation judgment and ability to understand the company’s business objectives,” says Martin Himeles, a partner at Zuckerman Spaeder. “And the general counsel should be willing to accord substantial weight to lead counsel’s advice concerning the composition of the balance of the litigation team.”
Marshall Grossman, a partner at Bingham McCutchen, adds that GCs also must select an outside counsel who “places the client’s interests above his own and understands that a good settlement is almost always preferable to putting the client’s interests in the hands of a judge or jury.”
Public relations professionals also should be part of a company’s core bet-the-company litigation team, as they will help defend its reputation throughout the matter.
“The risks of dealing with—and not dealing with—the media are exacerbated in bet-the-company litigation,” says David Marriott, a litigation partner at Cravath, Swaine & Moore. “In today’s world, information vacuums are readily filled by misinformation.”
Early and top priorities in bet-the-company litigation will vary depending on the nature of the litigation, but in all cases, teams should establish a distinct set of goals.
Teams’ target goals should include understanding the allegations involved in the litigation, determining the facts related to the claims, interviewing key people to understand the scope of the issues and getting a handle on relevant documents while also ensuring that relevant material is preserved and collected. Additionally, it’s important to conduct a cost-budget analysis, outline solid litigation objectives and tactics, and evaluate how the litigation could affect the company in the immediate present and future.
“In bet-the-company litigation, except in the rare case in which a very prompt resolution is possible and desirable, an essential priority is to investigate the underlying facts thoroughly and critically, and to identify both strengths and weaknesses of the company’s position,” Himeles says. “Only with that knowledge is it possible to develop factual themes and legal theories that enhance the strengths and mitigate the weaknesses, and to design and execute an intelligent strategy.”
It’s also often the case in bet-the-company litigation that teams are managing multiple cases and investigations at once. That’s why organization and good communication is crucial.
“As the number of matters increases, the importance of organization does as well,” Bernard says. “More specifically, interviews should be documented, documents collected in databases with easy online access, key pleadings and other filings appropriately marked and accessible, and memos to file drafted to memorialize key conversations with adversaries or investigators. Although these basic steps are often difficult to do in the crunch of an onslaught of litigation and investigations, and at times can seem like unnecessary expenses, they pay huge dividends as cases progress for years and institutional memories dim.”
General counsel must work with outside counsel who are not only experts in such cases, but who also are committed to professionalism in the courtroom.
“The most effective courtroom tactics require absolute candor, clarity and simplicity, which are possible only with a meshing of, and comfort with, the facts and the law,” Marriott says.
A good litigator will make creative use of resources—such as technology and consultants—that will have an impact at trial. “High-stakes cases invariably involve complex issues and extensive documentary evidence, and the use of technology to make the evidence more accessible to a jury, or even to a judge, is likewise extremely valuable,” Himeles says. “Jurors who are disinclined to take the time to review complex documents will often snap to attention when a document appears on a monitor, with key excerpts blown up and highlighted. Similarly, a picture is worth a thousand words, and charts, graphical representations of complex concepts, PowerPoint presentations and animations can be helpful in explaining complex facts and concepts and highlighting key themes.”
Still, experts warn that counsel shouldn’t overuse such techniques. “A finely tuned balance of modern technology and good old-fashioned oral advocacy enables counsel to make the most effective presentation possible, establish a strong bond with jurors and keep their attention with an appropriate combination of humor, story-telling, passion and even anger, in measures appropriate to the case,” Himeles says.