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Once your company becomes a defendant in a high-stakes commercial litigation matter — be it a class action or one that pits your company against another — it is exposed to a double-headed monster: substantial liability risks and open-ended litigation costs. The two need not go hand in hand. Yet how many times have you seen or heard about well-intended estimated litigation budgets often being exceeded sometimes by factors of two or more? Why? Because litigation is a human-driven, ever-changing process. When this is coupled with the fact that most defense firms’ profits are derived from billing more hours, is it any surprise that litigation costs race out of control once the foot hits the accelerator pedal? For more than 28 years I have successfully litigated numerous complex commercial cases primarily on behalf of plaintiffs (although I have also defended my share), representing large companies, chief executive officers and, of course, plaintiff classes. Along the way, we litigated cases with many nationally known plaintiffs lawyers. I have had the opportunity to observe, compare, and contrast the litigation approaches of top defense and the top plaintiffs lawyers. The conclusion? In-house counsel and their companies could greatly benefit — lowering litigation costs and improving results — by requiring their outside counsel to adopt some of the approaches that plaintiffs attorneys employ. Here are some of the ways you can begin to do so. DOWNSIZE LITIGATION TEAMS Most defense teams today are pyramided — much like your independent auditors’ audit teams — with the most experienced lawyers distanced from the case and younger lawyers working the case on a day-to-day basis. This is not cost-effective, and necessarily results in a diminished product. It’s a myth that the amount of money involved makes a case more complex, requiring proportionally more staffing. Other than more documents to review, most high-stakes cases, like their small-stakes counterparts, boil down to a few key factual and legal issues. Aware of this simple truth, plaintiffs lawyers work with smaller litigation teams that are leveled as opposed to pyramided, requiring their most experienced lawyers be involved in the day-to-day details of the case. Whom would you prefer presenting a key matter in court for you? A senior attorney who has been filled in by subordinates or one who has lived with the case from day one and knows it from soup to nuts? EXPECT TO GO TO TRIAL Most cases end in settlement. Yet the most direct route to obtaining a favorable settlement is to ignore the prospect of settlement and instead prepare from the outset as if your case is going to be tried. Lawyers who prepare and litigate their cases with an eye toward settlement rather than trial normally end up losing money for their clients. Because they have only one desired endpoint — a jury verdict for the plaintiff — top plaintiffs lawyers, beginning with case acceptance and throughout the litigation, prepare their case with the mind-set that it is going to trial. This creates an unwavering focus, early on, on what is important to win and what is not. Many top plaintiffs lawyers will jump-start this process from the outset by articulating out loud a short statement of their best case in a minute or so to see how it sounds, perhaps running it past their assistant, paralegal, associates, or co-counsel. It is a simple yet powerful process that can and should be used in defense matters. Why not ask your outside counsel, in any of your current defense matters, to go through this process with you? You and your counsel will be better informed as to what you need to win at trial, and, as a result, will be better prepared to develop a coherent and efficient litigation plan for the entire case. It may be counterintuitive to prepare a defense matter with the expectation that it is going to trial, when the goal of every defense is to avoid trial if at all possible by using the multiple pretrial endpoints available to dismiss a lawsuit. But most judges are not automatons — whoever presents the most appealing case story will have a decided advantage. The party who prepares its case as if it is going to be tried and in that process refines its best case story improves its chances of prevailing at every turn in the litigation, including those pre-trial ending points that every defendant wants. In addition, plaintiffs lawyers always keep their eyes on the potential jury instructions applicable to the case at hand. They provide preliminary insight into the basic law that will control the case and thus provide a powerful tool upon which to cause outside counsel to prepare a more efficient litigation plan. It also provides you with the plaintiff’s road map to get their case to a jury and thus better informs you as to where your team can lay the best roadblocks. THE �LIMITED CHIPS’ RULE In every case, you only come to the table with a limited number of credibility chips with most judges; don’t use them up on bad bets. Plaintiffs lawyers do not have the luxury of wasting time on motions or positions that are most likely losers and thus only fight the key battles for which they have a reasonable expectation of winning. Defendants should do the same — particularly with today’s overworked and less-patient courts. For example, unless the motion to dismiss process will likely result in a dismissal with prejudice, you should not initiate this process. If the most likely result is the plaintiff being granted opportunities to amend, then all you have done is wasted chips and educated the plaintiff on how to refine their case. The same applies to briefing: Rein in your outside counsel’s tendency to research, brief, and then argue every possible position. It may provide their associates with a nice education, but it is costly for you and, again, weak arguments are like weak motions — they use up litigation chips and undercut the credibility of your strong arguments. ABOUT YOUR DOCUMENTS Virtually every complex litigation matter turns upon the prepared documents of the parties and, in particular, the documents prepared by the defendant. Rather than fight over document production — a money waster and a big chip loser (courts hate discovery disputes) — the better approach is to bend over backwards to ensure that you have provided the other side with every possible document that might be reasonably encompassed within their requests. Then with the litigation dollars that you have just saved, have your counsel do something far more important — have someone review your documents with a plaintiff’s mind-set, seeking to find what a plaintiff would view as your most troubling documents and then interpreting with a plaintiffs perspective so that you can anticipate their best case story and better prepare your defense. AT TRIAL Even though their battleground is “complex litigation,” plaintiffs litigators know that they must make their case simple — particularly at trial. More often than not, defense teams take almost the opposite approach, trying to complicate, obfuscate, and drag out the case. If you have to go to trial, rein in your team’s tendency to drag the case on through obfuscation — it usually backfires. Keep it simple and stand on your case’s strong points. If delay and obfuscation is your best or only choice because the plaintiff’s case is strong, then read the next recommendation. WHEN YOUR CASE IS WEAK If after you have followed the above approaches, you determine that the plaintiff’s case is strong and your case is weak, start talking settlement as soon as possible. You will almost always be better off settling a weak case early on, before more damaging evidence comes out, the value of the opposing side’s case progressively increases, and — not to be overlooked — the opposing counsel, who is working on a contingency, has had to put that much more time and expense into the case. To better implement these approaches, consider hiring a plaintiffs attorney experienced in complex litigation, and make him or her part of your defense team (preferably as a member of the in-the-trenches litigation team or, at a minimum, as a consultant to your company). In addition, having an experienced plaintiffs counsel incorporated into the defense team gives your team insights into how the other side thinks. That is an edge that helps you better anticipate where the plaintiffs are headed and thus greatly enhances such things as witness preparation and overall case strategy. Some of us happily litigate on both sides of the fence. CONTINGENCY COMPENSATION Making contingency part of your outside counsel’s compensation better ensures a lean yet high-quality effort on your counsel’s part by building in an economic incentive for them to ensure the best result possible. For matters in which your company is a plaintiff, a contingency fee is a natural choice, and for defense matters, you might consider combining a blend of reduced hourly rates with negotiated bonuses keyed to benchmarks based on how much your exposure is reduced at the end of litigation. Each case presents unique challenges and thus there is no way to treat each matter the same. But when properly followed, these suggestions are the initial portals to systemically lowering costs and producing better results.
Stewart Weltman recently formed the Weltman Law Firm, a Chicago-based firm, to help in-house counsel and corporations lower their costs while improving results in high-stakes litigation matters.

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