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9 Things Outside Litigation Counsel Say About In-house Counsel

Kenneth J. Lopez, J.D.
By: Kenneth J. Lopez, J.D.

Mock Trial, Litigation Management, Pricing, Management, In-House Counsel


Ken Lopez
A2L Consulting

Even behind closed doors, our law firm clients have very good things to say about their in-house clients. It's relatively rare that I hear any serious complaints. Almost without exception, our outside litigation counsel clients are actually quite proud of the relationship they have with their mostly Fortune 1000® corporate clients.

However, especially in these times of change, with all the talk of a legal industry new normal, I do hear some frustrations being discussed regularly. Below are nine things I hear outside litigation counsel say regarding in-house counsel that deserve more attention:

  1. We would all benefit from better early case assessment: Outside litigation counsel understand that litigation costs are under fire. By making outside counsel part of the solution rather than a line item to avoid later, better decisions can be made. A2L, for example, is being increasingly asked to use a variation of our Micro-Mock process to help both in-house and outside litigation counsel assess the potential merits of a case closer to filing than to trial. Failing to do this type of formal analysis often leaves too much to instinct and emotion.
  2. When the stakes are high, let litigation counsel do what they are good at: Some corporations are often involved in litigation but are still rarely involved in high-stakes litigation. The two types could not be more different. Controlling costs in small cases is critical. However, trying to control the throttle too much when hundreds of millions or more are at stake can be like jumping over dollars to pick up dimes. Outside litigation counsel who are expert at their craft need room for creativity. However, that does not mean the relationship should be without structure. Rather, I believe that it is the structure, in the form of budgets, reporting and deadlines, that allows for maximum creativity by outside litigation counsel.
  3. Put settlement and trial preparation on separate tracks: Settlement talks often fail. Sometimes one side may disingenuously signal settlement just to slow down trial preparation. For these reasons and more, it is important to allow settlement talks to proceed while fervent trial preparations continue. It is normally best to create a separate settlement team when settlement is a possibility and trial is approaching. See related article about two-track trial preparation strategies: Litigation Consultant: Embrace a Two-Track Strategy & Win the War.
  4. Enthusiastically embrace mock trials: This is one of the most common frustrations I hear from outside litigation counsel. They want to conduct mock trials, but frequently get resistance from in-house. Once they get that resistance, they sometimes fear that insisting on a mock makes them look like they don't know what they are doing when exactly the opposite is true. After all, if practice didn't matter why would all great athletes and great actors do it almost obsessively? In this era when trials are quite rare at large law firms, in-house counsel should want to encourage practice via mock trials since it will help them get a better result and may help inform settlement. See 7 Reasons In-House Counsel Should Want a Mock Trial.

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  5. Watch the mock exercises: While I think outside litigation counsel from prior generations preferred to run a case with minimal regular input from in-house counsel, these days, in-house counsel are involved more regularly. One area where in-house counsel should increase their involvement further is in the attendance of mock trials. From behind a one-way mirror, you will learn more about your case, the perception of your firm, and your choice of outside litigation counsel in one day than in the year(s) of preparation that proceeded it. The great lawyers will want you there while the less confident prefer to prepare privately and avoid mock trials altogether. Keep an eye out for this litigation counsel red-flag.
  6. Be clear with your leadership approach: In a recent article about joint defense teams, I touched on the topic of litigation leadership by in-house counsel. Generally, I believe that a variety of team structures will work so long as they are clearly defined and executed. Trouble arises when there is confusion about who is in charge. See 5 Tips for Working Well As a Joint Defense Team as the lessons discussed here apply just as well when working with a single law firm.
  7. Litigation consulting vendors are not created equal: Preferred vendor relationships are on the rise for litigation consulting firms. We participate in them at A2L and encourage them. However, market disruptions are putting the future of some trial graphics firms (not ours) that regularly appear as preferred vendors in question. Procurement departments and in-house counsel are going to have less visibility into vendor stability than outside counsel, and outside counsel should generally make the final decision about who to use for jury consulting, litigation graphics and trial tech for best results.
  8. Pay vendor bills on time: Litigators never want to deal with getting bills paid as they prepare for trial. It's distracting and annoying. All relationships on the team are weakened when bills are not paid timely. The bottom-line benefits of simply paying bills on time was covered in more detail in a recent article, 10 Ways Timely Payment Helps You Save Money On Litigation Consulting.
  9. There's more that outside counsel can and should be doing: From early case assessment by litigators, to client counseling about the very things they try cases about, to participating in non-litigation messaging, to assisting in lobbying and legislative activities, outside litigation believe they have a lot more to contribute to the operation of a business than they are being asked to do. As an informed outsider, may I suggest that in-house counsel consider starting off 2014 by asking your outside litigation counsel how they can help you manage budget better and run the business more effectively. The best litigation counsel will have an informed answer for you. The litigators that you will soon want to relegate to your slip-and-fall cases will look at you like a doe in the headlights.

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