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General Counsel Should Establish Early Case Assessment Protocols to Manage Cases, Speakers Say
Establishing a protocol of best practices—much like the checklist that an airplane pilot follows before every flight—is essential for general counsel in assessing the financial impact of a potential case, as well as determining whether or not settlement is in the company’s best interest.
During a complimentary Webinar, sponsored by LexisNexis and entitled “Early Case Assessment and Settlement Strategies for In-House Counsel”, an esteemed panel of litigators and GCs discussed their methods for effective case assessment. The panel consisted of: David M. Governo of the Governo Law Firm; Bridget M. Ahmann, a partner at Faegre Baker Daniels; Jeffry Koenig, chief litigation counsel, safety, health and environmental counsel and compliance officer at Cytec Industries Inc.; Brenda Cleveland, senior litigation paralegal in the legal department at Cardinal Health; and David Orensten, assistant general counsel of litigation at Cardinal Health.
“An airplane pilot is not going to rely on memory or hope to make sure the plane flies properly and the same goes for your litigation protocol,” said Governo.
Ahman said that counsel needs to own the case assessment protocol and to tailor it to the type of business they are in, to consider the types of conflicts they see and to be flexible enough to revise it for any particular dispute that they may encounter.
She recommended that counsel begin case assessment within 60 to 90 days of filing in a defensive case and to immediately start assembling their litigation team.
Koenig said that the first step is to issue litigation holds.
“There is no substitute for knowing the facts of your case as early as possible,” he said.
He suggested that counsel reach out to the executives and businesspeople who know about the matter, and are familiar with the related participants, emails and other written documents.
Cleveland said that the key part of her company’s assessment system is reviewing company documents and electronic data.
“One of the things you need to do immediately is identify and make arrangements to meet with two to three key players from the business. These individuals will most likely be key document custodians. And they’re going to be able to do several things for you at the onset of the case. They’re going to be able to provide factual background and potentially assist you in identifying the issues,” she said.
“However early e-discovery efforts can often shape your case by not only bringing the good facts to light but also any bad facts and documents, thereby allowing you to make informed decisions about case strategy,” she said.
She said that she uses technology as well as information from those “key custodians” to help streamline the process of initial document review.
Orensten added that, as part of the early case assessment process, his team is also getting a feel for the “intangibles” about the key custodians. He said they are making “observations whether we think folks will present well at a jury or a judge and our own credibility assessments of our case as well as how we think other folks will perceive that.”
Orensten stated that counsel should take a different mentality when going into an affirmative case.
“In affirmative cases, you’re in control up until the point you bring the lawsuit, and making sure you know what you’re getting yourself and your company into is critically important,” he said.
In those types of cases, he suggests that counsel think through what the opposing party might do in terms of the analysis of document requests and inquiries.
“You want to find that bad document before you bring the case because you may decide not to bring the case,” he said. Also, he suggested that counsel think of potential defenses or counterclaims and ensure that there isn’t a counterclaim that can come up and destroy your entire case. Governo added that counsel should try to get a realistic or objective assessment before filing the affirmative case.
“Many times your corporate executive will have a particular perspective, a bias or motive for thinking that this is a great affirmative claim,” he said.
“I would advise you to get a second opinion on that. Take a look at it. Try to put yourself in the shoes of your opposing counsel to look ahead and try to figure out what the case is going to look like to a jury? Is it going to look like a rose, like the corporate executive thinks? Typically not and that’s very important in making a decision about whether you bring an affirmative case and it’s also important to develop a strategy on your defensive case,” said Governo.
Review the on demand webinar “Early Case Assessment and Settlement Strategies for In-House Counsel” at the following link http://bit.ly/GZkn5V. Also available is an early case assessment checklist created in conjunction with our panelists. Access it here.