Effective Litigation Management Strategies
Q: What's the difference between a lawyer and a boxing referee?
A: The boxing referee doesn’t get paid more for a longer fight.
Okay, I admit, it’s a cliché to start a litigation management blog with an “attorney” joke, however there’s a valid message in this joke. Attorneys are paid hourly for the work they do, so it’s crucial that we have a clear plan in place to manage this expense. Failure to appropriately manage the litigation costs with a file can result in unexpected outcomes, legal fees that exceed the value of the claim, and an overall frustration with the process.
There are 4 essential steps to managing the litigation process:
- Attorney Selection
- Litigation Plan
- Billing Agreements
Attorney selection is probably the most critical piece, and a logical first step. Counsel should be selected with expertise and experience in both the area of law, as well as the type of industry. Counsel selection should address if they’re on an approved attorney panel for the insurance company (if involved), whether the exposure warrants an associate or partner involvement, as well as who will be the primary attorney handling this matter. If you’re not familiar with the attorney and/or firm it’s completely acceptable to conduct interviews before making a decision.
Once you’ve selected the attorney, a litigation plan is essential to ensure that all parties, the insurance company (if involved), the client (you) and the attorney are working toward a common goal. This plan should include:
- An initial evaluation.
This evaluation should be received within 30 days of assignment and include, exposures, strategies and any additional investigation, actions or evidence required. The litigation should outline a timeline for when certain actions are anticipated and while these can change based on the court system, or the plaintiff’s management, it keeps the plan on target.
- A budget.
The legal budget should be based on the different avenues a case can take. For example, the budget can take a case through arbitration, trial or settlement. As the strategies or goals evolve with the case, the budget should be re-evaluated as well.
While a strategy should be part of the litigation plan, this is such a crucial element of the litigation plan, that I felt it deserved special mention. The strategy for managing the litigation on a claim can do a 180 if the deposition does not go as anticipated, or a recent ruling comes down that changes the interpretation of the law. Once a strategy is set in the litigation plan, this should be continually discussed against the current activity on the file, to make sure both the actions and strategy are in line. This is a piece that is missed so frequently in the litigation management process. A lot of times the strategy is set to settle a file, yet we see the litigation go down a road as if preparing for trial, with interrogatories and depositions, when this may not have been necessary.
- Setting timelines.
Setting targets based on the venue and nature of the suit are essential on keeping the file moving in a positive direction. In my view this sets clear expectations. If a specific venue typically takes 2 years for a case to go to trial, knowing this up front will reduce the frustration or the feeling there is no active management of this suit. These will change as the suit unfolds, or if other parties are brought into the litigation. However it’s a good point of reference and one to be frequently updated as circumstances evolve.
Once the litigation plan is in place, how’s this going to be communicated? Setting communication protocols will be the key to executing on the litigation plan. The communication protocol should outline the parties to the communication, the anticipated time frames on when to expect communication, as well as what should be included in this communication. Believe it or not, including copies of motions, responses and orders is not automatically submitted to the clients. My recommendation is to require copies of these (and any other documents) be shared with the insured, along with a cover sheet outlining what is attached, and what the current status is. Communication after hearing dates should be received with 3 business days (even if the communication is brief with more details to follow).
Finally, and probably most important to ensuring an amicable attorney – client relationship is billing agreements. We can all agree that when we’re in a situation that requires an attorney to defend us, it isn’t our brightest moment. There might be a lot of anxiety, a lot of fear and concern for the costs, so having an agreement that both parties can abide by up front will assist in reducing animosity in the process. Billing agreements should indicate what’s acceptable in the billing, and for some circumstances, what the maximum allotment for that service will be. These agreements should also reflect any items that require pre-approval prior to the expenditure (which is a good practice and one that most firms automatically engage in). Finally, the billing should outline the billable rates for the attorneys that will be involved.
Choosing the right counsel, setting a clear litigation, defining the strategy for resolution and ensuring an amicable billing agreement is in place will make navigating through the litigation process much easier.
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