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“My heroes have always been cowboys; And they still are it seems; Sadly in search of and one step in back of; Themselves and their slow-moving dreams.” — Willie Nelson I always wanted to be a cowboy, so it seemed like a good idea to try to apply some cowboy wit and wisdom to advice for in-house counsel on managing litigation. So with apologies to A Cowboy’s Guide for In-Housers Who Manage Litigation, who collected some of the following quotations from a mixture of lore and experience in his “A Cowboy’s Guide to Life,” here goes: � “Big hat, no cattle.” Do not let well-known plaintiffs’ lawyers intimidate you into making settlements that are not economically justified. Famous plaintiffs’ lawyers put their pants on one leg at a time just like the rest of us. While certain plaintiffs’ lawyers may enjoy some notoriety, they have to develop the facts of each case and present evidence to support their claims. Focus your attention not on the lawyer with the biggest hat, but on the lawyer with the most cattle. � “Timing has a lot to do with the outcome of a rain dance.” Timing is crucial to effective litigation management. Litigation strategies are time-dependent. Windows of opportunity open and close as cases evolve. You must be prepared to take advantage of those opportunities. In-house counsel must be nimble and responsive in positioning a case for resolution. � “Always drink upstream from the herd.” You never want to be one of the last defendants remaining in a multiparty case. It is important to take a proactive role in multiparty litigation and be involved in decisions that determine the conduct of the suit. Do not make the mistake of allowing others to do the “heavy lifting” for you, thinking that you will save some money on legal fees. More often than not, others will settle out from under you, and you will be left standing as one of the only remaining target defendants. � “A length of a conversation don’t tell you nuthin’ ’bout the size of the intellect.” Economy of expression is a virtue in pleadings and briefs. It is more time-consuming to write concisely and clearly than it is to ramble on for pages. Always remember your audience and craft your message accordingly. I have yet to meet a judge who does not appreciate brevity. Yet some outside counsel are afraid to send short drafts to in-house counsel because in-house counsel might later challenge the bill. Do not purchase your legal services by the pound. � “Never kick a fresh turd on a hot day.” Learn to identify situations that can exacerbate emotions in litigation and avoid the temptation to do so. Have an economic game plan for resolving disputes and stick to it. Do not react emotionally to litigation. Emotional responses to litigation tactics delay resolution of your dispute. And never pick a fight that you cannot win. � “Don’t never interfere with somethin’ that ain’t botherin’ you none.” It is tempting to respond to every allegation of any kind or character in a suit; however, it is more important to pick your battles carefully. Define your objectives at the inception of a suit and be mindful of them at all times. Do not allow opposing counsel to distract you with accusations that are designed to do so. � “If it don’t seem like it’s worth the effort, it probably ain’t.” It is important to have a plan for handling a suit. The plan should set forth the tasks necessary to accomplish your goals. Instead of deposing every witness, how about deposing only those witnesses whose testimony you will need to establish your case or defense? RIGHT AND WRONG � “Tellin’ a man to go to hell and makin’ him do it are two entirely different propositions.” Seldom is a suit for damages a useful tool for changing the conduct of a party. If you want to change a party’s conduct, then you are well-advised to acquaint yourself with all forms of ancillary relief including injunctions, attachments, sequestrations and receiverships. An injunction is a much more powerful tool than a suit for damages for making a party change its conduct. � “Trust everybody in the game, but always cut the cards.” Most lawyers are fairy honorable, but they do sometimes have lapses of memory when it comes to agreements they make regarding the conduct of litigation. Therefore, it is prudent to get all agreements concerning the conduct of any suit in writing so that they comply with the terms of applicable rules of civil procedure. You can better understand how plaintiffs’ lawyers approach cases against multiple corporate defendants by watching a good cutting horse work cattle. A rider will pick out a calf from the herd, and a good cutting horse will work the calf, gradually eliminating the calf’s options, until the calf is cornered. Perhaps that is why at least two well-known Texas plaintiffs’ lawyers are national cutting horse champions. One final virtue of the cowboy way of life is integrity. Most cowboys have a good sense of right and wrong. In the same way, it is important for in-house counsel always to approach every decision in managing litigation with the utmost integrity. Like the best of the cowboys of the Old West, always let your word be your bond. Steven M. Zager is a partner in Brobec k, Phleger & Harrison in Austin, Texas.

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