Practical Aspects of Litigation Management Elizabeth Ganiere Simon Keshishian © CLM Litigation Management Institute All rights reserved. The course material presented herein does not represent the views or opinions of any of the individual faculty members or instructors or of any of the companies or entities with which they may be employed or affiliated. Nothing in the course materials presented should be construed as legal or professional advice or the rendering of a legal or professional opinion on any specific factual situation. Always seek appropriate legal and professional business advice in the context of specific cases.

What is litigation management?  The practices and polices put into place by a company or entity to avoid the risk and potential of a lawsuit and after a suit is filed  Part of a comprehensive risk management strategy  Definition can vary greatly depending on who’s perspective (e.g., insured, insurer, TPA, defense counsel, or indemnitor)

Effective Litigation Management  Necessary upon receipt of a claim, but should be addressed long before suit is filed, including:  Pre-claim processes and procedures  Should be front-loaded considered in conjunction with effective risk transfer devices  Litigation isn’t always a bad thing

Goals of Litigation Management  Resolution of Matter  Provide quality defense  Maximize the efficiency/effectiveness of legal spend

Components of a Litigation Management Program Case Managers/Claims Professionals  Assess and evaluate case  Assign case to local counsel  Establish settlement value (reserves / budgets)  Develop litigation strategy  Negotiate early settlement  Thoroughly review and pay legal bills

Components of a Litigation Management Program Litigation Management/Billing Guidelines  Define roles of counsel, insured and insurer  Establish reporting requirements  Create budgeting requirements  Alert counsel to billing requirements and expectations

Components of a Litigation Management Program Management  Goal: develop and maintain a panel of quality, approved counsel  Vet potential new counsel  Review performance of member counsel  Negotiate and set billing rates/fee arrangements  Report on performance issues

Components of a Litigation Management Program Electronic Billing System  Software platform for submitting and analyzing budgets and legal bills  Verifies billing rates and math  Compliance with billing rules  Collects billing data for analysis  Compares bills to budgets

Components of a Litigation Management Program Case Management Systems  Software platform for managing legal matters  Functions  Assignment to counsel  Tracking case progress  Litigation planning and strategizing  Reporting and Notes  Budgeting  Billing

Components of a Litigation Management Program Data Analysis  Establishes litigation management metrics  Develops software and databases for tracking metrics  Analyzes and reports on metrics

Strategic Implementation: Developing a Litigation Plan Without a Plan…  Litigation chugs along without checks that may lead to:  Increased duration  Increased legal costs  Increased indemnity costs  Poor results

Strategic Implementation: Developing a Litigation Plan Identification of Critical Issues To Be Resolved  Issues that need to be resolved to evaluate case  Derived from facts, elements, causes of action and defenses  Liability issues  Damages issues  Focus on issues that lead to early resolution

Strategic Implementation: Developing a Litigation Plan Identification of Preferred Method of Resolution  Tender to responsible parties?  Early settlement?  Settlement at some key, later point?  Dispositive motion?  Third party action?  ADR?  Trial?

Strategic Implementation: Developing a Litigation Plan Create a Discovery Plan for resolution of Case  View discovery as a tool to achieve desired disposition  What discovery and investigation is needed to resolve critical issues?  What discovery activities will other parties initiate?  What discovery and investigation is needed to prepare case for dispositive motion or trial?  What are risks of not conducting certain discovery?  Determining when discovery may and may not be limited  Are there less expensive alternatives to discovery available?

Strategic Implementation: Developing a Litigation Plan Discovery Plan:  Client-specific constraints and opportunities:  Philosophy, reputation and other issues concerning the case  Work within plan guidelines and report when key items may alter the case outlook  FRCP 26 and State equivalent  Depositions, Documents, eDiscovery  Subpoenas and 3 rd Party Subpoenas

Strategic Implementation: Developing a Litigation Plan Discovery Plan (continued)  Lay witness considerations  What party and non-party witnesses do we need to interview and/or depose?  If party witnesses, do they still work for the client? If not, will they be hostile or non- cooperative?  Where are they located?

Strategic Implementation: Developing a Litigation Plan Discovery Plan (continued)  Expert witness considerations  What experts do we need?  How do you find quality experts?  How many expert witnesses need to be interviewed and/or deposed?

Strategic Implementation: Developing a Litigation Plan Motion Plan:  Motion Practice  Similar past cases to repurpose the Motions  What substantive motions do we plan to make?  What substantive motions do we anticipate others will make?  Evidentiary Motions?  Motions in Limine?

Strategic Implementation: Developing a Litigation Plan Budget Plan:  Phases of the Plan  Possible issues for budget adjustments:  Extended life of case  New or additional Phases, i.e., Appeal  Added parties

Strategic Implementation: Developing a Litigation Plan Budget Plan (continued):  Other Budget group  Entire case  Phase level  Task level  Obtain budgets from experts and vendors  Ramifications of over and under budgeting

Strategic Implementation: Developing a Litigation Plan Budget Plan (continued):  If available, use the budget format required by client  Uniform Task-Based Management System (UTBMS Codes)  Allows client to collect legal spend data and analyze at phase and task level  Allows easier comparison of budgets to invoices  Ramifications of not properly using the UTBMS codes

Strategic Implementation: Developing a Litigation Plan Analyze the Case and Plan from a macro and micro level  Does plan make sense on a macro level?  Cost/benefit analysis  Compare litigation cost to settlement value  Business purpose to settle or litigate?  Possibility of repeat case  Business reputation considerations

Strategic Implementation: Developing a Litigation Plan Analyze the Case and Plan from a macro and micro level  Does plan make sense on a micro level?  Review individual tasks  Are they necessary?  Do they resolve a critical issues or further the resolution strategy?

Practical Aspects of Litigation Management Simon Keshishian Elizabeth Ganiere