The following discussion between general counsel Ken Siegel and litigator Eulonda Skyles explores their differing perspectives on litigation, and highlights how GCs and litigators can form partnerships.
Ken Siegel: As a GC, I am the primary interface between outside counsel and my clients—the executives and the board. My clients always view litigation through a business lens: What are the costs/benefits and odds of prevailing in litigation? What business goals will be achieved by a “win” and what harm sustained by a “loss”?
A key part of my job is to translate “litigation” into “business,” and then provide legal counsel and advice to the ultimate decision makers. I always have to keep the business’ big picture in mind. No matter how fascinating the procedural steps are or how novel the legal theories for or against my position may be, my clients just want the business analysis. I need to know that my outside counsel understands this context.
Eulonda Skyles: Can you provide examples of this “business lens”? I’ve found that oftentimes business executives ask: “How much is this costing?” and “Why can’t you make it go away?” Yet, if you probe the surface, those simple questions may reveal deeper business concerns.
KS: The first question is whether the matter presents an existential threat. The vast majority of matters don’t, but something like a patent infringement suit that goes to the heart of a company’s products could.
For the cases that don’t pose an existential threat, the “business lens” for viewing litigation includes factors such as: What is the reputational risk associated with the case? How does this litigation impact my company’s position vis-à-vis a specific competitor or within the broader industry?
How is the cost of litigation going to impact the bottom line? How much distraction will the matter entail for company personnel whose time is better spent doing their real jobs? What is the risk/reward calculus of the litigation—i.e., the likelihood of prevailing versus the cost of defending or pursuing the suit? What’s the delta between the settlement demand, the exposure and the cost of defense?
Ideally my outside counsel would be highly sensitive to these business issues and factor them into their thinking as they work with me to develop and execute a litigation strategy.
General Counsel’s Bottom Line
ES: Every litigator wants to exceed the general counsel’s expectations by delivering superior legal services, and thereby differentiate themselves in a crowded and competitive legal market. Can you describe what you most need from outside litigation counsel?
KS: What I want from counsel really falls into two categories that correspond to my dual roles as a lawyer and a businessperson.
As a lawyer with a good sense of curiosity, I want to know about the nuts and bolts of the litigation, including the procedural steps, as well as the facts and applicable law. Each GC is going to have his/her own preference about whether to take a deep dive into a case or stay at the surface. For me, the depth I’ve wanted to go varies based on the magnitude of the case, type of case (IP/employment/commercial, etc.), and the competing demands on my time.
My personal tendency is to dive deeply into a matter. Ideally, outside counsel would explore the depth at which I’d like to dive at the outset through direct discussion, and then check in from time to time that I’m getting what I need.
I’m not afraid to ask for what I want, but I really like it when I’m in sync with my outside counsel and don’t always have to ask to get to the right level of discussion. I tend to hire the folks I trust for the next matter that arises, so ending up on the same page in terms of the level of engagement becomes easier with greater experience.
As a businessperson, I need confidence that my counsel has a case strategy—how we are going to win—not just a good knowledge of the procedural steps. No matter how beautifully written a motion is, my first question will always be: How does this advance our case strategy?
And my second question will often be: If we lose this motion, how will it alter the litigation dynamic and how our case is perceived by the court and opposing counsel? In my opinion, the real difference between “outstanding” and “effective” counsel is the ability to work with me to create a coherent, well-thought-out case strategy.
ES: I agree with you fully. Litigation counsel’s primary goal should be devising a case strategy that instills confidence and reflects the business objectives of the organization.
Yet, as they say in the Air Force: Flexibility is the key to air power. A successful case strategy is only as good as a litigator’s ability to adapt to a fast-changing and unpredictable litigation landscape. I believe that I offer superior legal service when I develop a strong theory and strategy for the case, stay two to three steps ahead of my opposing counsel, and adapt the strategy as the case evolves.
In my experience, a litigation playbook must be constantly refined and sharpened because of the numerous variables that impact any given case.
For example: illogical or obstreperous opposing counsel; the speed (or lack thereof) of the judicial system; adverse and often erroneous rulings (which you can appeal, but that can take years); and the unearthing of bad facts or witnesses.
So twists and turns in the case may alter the strategy and even the objectives for a case. It’s also important for you to recognize that the way you and your business clients view the case may shift and change over time, both as a result of the progress in the case as well as shifting business priorities.
For example, a case you wanted to “win” to prove that you won’t roll over may take on a different complexion if you’re looking at a significant corporate transaction such as an IPO or acquisition.
Adaptability shouldn’t be a substitute for vision, however. I try to act as an effective change agent, while not losing sight of the importance of articulating a coherent vision and strategy for the case.
I’ve found that the best way to achieve that balancing act is to give the general counsel and businesspeople complete transparency into the litigation process. That often takes the form of regular and detailed (and preferably in-person) case updates, where my team and I provide specific explanations for any proposed changes to the litigation playbook.
After years of working in Silicon Valley, I’ve found that the trusty whiteboard is an excellent tool that litigators can use with their clients to reduce complex legal concepts into their essence.
ES: Would you indulge us litigators with a lightening round of specific practice pointers to help us help you better?
• Help me balance aggressive litigation versus sitting back and waiting.
• Help me balance investment up front—e.g., really looking for prior art or hiring a private investigator, versus waiting to see how the case is unfolding before investing.
• Identify the likely inflection points in the case—i.e., when will I or the opposing party likely feel most vulnerable/emboldened, and how may those inflection points be used to my advantage?
• Help me balance “cooperation” with the opposing party versus making them develop their own case.
• Always protect and preserve the company’s (as well as your and my) credibility with the court. Take the high road throughout the litigation. It is always better to do the right thing now rather than explain later to the judge conduct that was unbecoming.
• Maintain a courteous relationship with opposing counsel. Personal grudges among outside counsel do not assist the client, ever.
• Provide accurate forecasts of what the case is going to cost, ideally broken out at the outset by key phases—e.g., the cost of discovery, motion for summary judgment, etc.
• Propose alternative fee arrangements for the client. Creativity in this arena would be a plus. •