by Ken Lopez
We often work on large cases, and large cases often have joint defense teams. A joint defense team is simply a group of law firms working for a group of clients and/or working on some issues together in a case.
Some joint defense teams work together brilliantly. It's like watching the best NFL players come together for the Pro Bowl game when each of them plays as a member of the same team. In a trial, sometimes the whole “dream team” unites to prevail. It's a beautiful thing to watch -- when it works.
Unfortunately, it doesn't seem to work that way very often.
In a recent engagement I watched a well-organized team in the run-up to trial perform beautifully. They had sorted out communication, who handled what issues, leadership, client communications, and billing arrangements with no apparent drama.
I can contrast that with any number of large cases where the opposite is true. These are unfortunately the majority of joint defense efforts. In these cases, turf battles are common. As much time is spent on politics as is spent on winning the case. I suspect cases have been lost entirely because a joint defense effort has failed.
So what's the difference between the joint defense teams that succeed and those that fail? I think the critical difference as with any NFL team, any military division or any serious business team, is in how the leader performs.
I have seen in-house counsel take the leadership role. I have seen joint defense teams elect a coordinating counsel. I have even seen co-leaders successfully prepare for and go to trial.
The common element is not the structure. The common element is the skill of the leader(s) and how the leader(s) runs the team. Here are five tips based on 18 years of watching joint defense teams that found success.
1. Make the leadership clear. If you are an in-house counsel who wants to be the leader, that can work but you have to be very explicit that final decisions are made by you. Failure to define this can by itself destroy a functioning joint defense team. In general I find it's best to convey that everyone has a voice but there is only one vote.
2. Assign specific roles to specific lawyers and let them build their teams. If you have a case that has antitrust, patent and pharmaceutical as well as bankruptcy claims and have six law firms, break down the issues in the case and assign the best lawyers for that issue solely. Only the leader should be able to overrule them.
3. Lawyers should be assigned roles typical to their roles in the corporation. There should be a lawyer in charge of all things billing. There should be a lawyer in charge of running the trial consultant team. There should be a lawyer in charge of coordinating the development of litigation graphics. You can sort this out early by breaking down all of the roles (e.g. opening, mock opposition counsel, point person for jury consulting work, etc.)
4. Constantly remind the joint defense team of the mission at hand. The leader should frequently say, “Don't forget these people are trying to get us and it's up to you to make sure they don't. The battle is never among the law firms. Remember, the battle is being fought for our company. And I'm counting on you.”
5. Find a way to make sure communications flow smoothly. As the leader, schedule regular meetings to communicate where the various teams stand. This way if people have some expertise yet are assigned to another team, they will still be able to provide input during these meetings.