1. Strategies for Litigation Management and Prevention
Association of Corporate Counsel
Jan. 17, 2017
Barbara Heim, Sunbelt Rentals
Greg Skidmore, Robinson Bradshaw

2. Strategies for Success In Litigation
Preparation and Prevention
Early Case Assessment
Select the Right Counsel for the Case
Communicate Early and Often
Spend Money Wisely
Work as a Team
What is Your Path to Victory?

3. Preparation and Prevention
You can never know too much about your company
Know your business
Identify key business contacts
Understand insurance coverage
Have a plan in place to retain and hold documents
Document retention policy (that includes )
Standard litigation hold memo
Work closely with IT
Develop a standard internal investigation process

4. Preparation and Prevention
Education and training for the whole company
Best practices (including IT)
Call legal department with questions
Privilege
Use business teams to advocate for legal
What are the risk areas for your company?
Competition matters
Operations in foreign countries/FCPA
Labor and employment issues
Interactions with government/regulators

5. Preparation and Prevention
Who will be your litigation team?
Internal crisis team
Outside counsel
Discovery team

6. Early Case Assessment Step 1: read the complaint
What are the legal issues?
What facts do you need to develop?
Evaluate the claims based on your knowledge of the business

7. Early Case Assessment
Think strategically about all aspects of the case
Proper forum
Insurance
Adverse party (customer, vendor, competitor, third party)
Opposing counsel
Who are the key internal personnel?
How does the case fit with other litigation?
Is an early resolution possible?

8. Selecting the Right Counsel for the Case
What do you need for the particular case?
Good trial lawyer or strategic thinker
Subject matter expertise
Geographic location
Familiarity with company and personnel
Familiarity with forum, judge or opposing counsel
How does the budget factor in to choice of counsel?

9. Communicate Early and Often
Communicate internally
Has anyone in the company dealt with this issue?
Who in the company has subject-matter expertise?
Who will be your internal resources for this case? (monitor for departures)
Who are the other people who “need to know” (and how often)?
Avoid surprises with internal clients

10. Communicate Early and Often
Communicate with outside counsel
Set expectations at the outset regarding communications, division of labor and decision-making
Determine whether a budget is needed and how often it should be updated
Convey as soon as possible how this litigation impacts the business
Coordinate on whether/how to interact directly with business teams
Maintain a two-way dialogue regarding changes in the case

11. Spend Money Wisely An early investment can save money down the road
Knowing the facts is critical to success
Interview witnesses and gather key documents
Understanding the case helps you prioritize issues, avoid detours and maximize the chance for early resolution

12. Spend Money Wisely Budgeting Budget for different litigation phases
Who should make up the team (internal and external)?
Expect the unexpected

13. Work as a Team Divide and conquer
What can realistically be done in-house?
What should be done by outside counsel?
What should be done by third-party vendors?
Failing to share information is expensive

14. Work as a Team Working with the business Build trust
Get the right people involved from the beginning
Outside counsel should understand how limited everyone’s time is and not waste it
Build trust

15. What is Your Path to Victory?
There is a Path to Victory in every case
Each case may impact the business differently
Need to win the legal issues and set a good precedent?
Need to avoid bad precedent?
Need to resolve litigation to avoid the overhang and distraction?
What does victory look like for this case?
Prepare every case for trial, even though most cases do not go to trial

16. What is Your Path to Victory?
Understand settlement options
How does your company approach settlement?
What authority do you have or can you get?
Think creatively about settlement – both from your perspective and the perspective of your opponent
Settlement process
Consider mediation
Use business people
Manage expectations

17. Greg Skidmore
(704)
Barbara Heim
(803)