Litigation Management- What is your Objective?

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So, you've decided you need to get your legal spend under control and you want to improve litigated outcomes. This is a great first step, but is spending really the main issue? And if so, is focusing solely on cost the right approach to tackle this issue? In this article, I provide some quick, high-level considerations for legal consumers:

• Risk and Propensity for Litigated Matters. The cost of everything is going up, and this includes lawyers. However, are you sure that you are not seeing more litigated matters due to improperly identifying business risks? If your frequency and severity of workplace accidents is increasing, starting here might be good place to start evaluating and controlling your legal spend. Many insurance carriers provide risk engineering services to help identify and mitigate risks that can turn into costly litigation.
  

• Establishing a Panel. aving a refined list of trusted counsel you turn to consistently can be beneficial on multiple levels. First, they will have a better understanding of your business, reducing the need to provide detailed information repeatedly. More frequent engagements can also enhance communication. With an established panel, companies can set standard rates for retentions on new matters, establishing fees, billing guidelines, and reporting expectations.
  

• Does Your Legal Counsel Have a plan? And a budget, too! Often, companies retain law firms on an as-needed basis, lacking a broader retention agreement or service level agreement (SLAs) for all matters. In instances where there is no SLA, firms provide the terms of engagement and expectations. Developing litigation guidance for counsel is critical to improving communication, billing behaviors, and outcomes. Establishing an early case assessment that is reviewed with you can also help identify case value and early resolution opportunities.
  

• Reviewing Bills. While most clients review attorney communication and litigation plans when they receive them, a surprisingly large number of organizations still pay legal bills with minimal or no review. Legal bill review is essential and an accepted practice. Bills should be reviewed not only for reasonableness but also against the litigation plan and budget. When possible, bills should be centrally reviewed against established billing guidelines provided to and agreed upon by counsel. The flip side of this issue is not taking a balanced approach to audits. There are plenty of bill review vendors that advertise quick reduction in spend by auditing legal bills, and surely there will be an initial lift, but focusing more on the litigation plan and the actual output will yield better results. Building a strong relationship with counsel is critical. Nickle and diming counsel will only lead to a strained relationship.
  

• Other Considerations. In addition to all the above, it is important to consider:

  • Work quality - Does your retention agreement or SLA allow for audits of the firm's work product.

  • Panel Diversity - Juries are as diverse as the makeup of the US, and counsel attending litigation events should better reflect this reality. Counsel choice also reflects your business.

  • IT / Privacy Considerations - Firms have sensitive data. They are as exposed to cyber risk as much as anyone else. Is there an audit or view into this?

  • Deep Defense Bar Relationships / Thought Leadership. Your counsel should be aware of emerging litigation trends, such as reptile theory, litigation funding, etc., and be able to speak to their strategies to counteract social inflation.

  • Sharing of Firm Insights - Larger firms have access to a mountain of data and insights. Many already leverage artificial intelligence. Are they sharing any insights with you?

This list is by no means exhaustive. The level of involvement in litigation strategy depends on various factors. However, an increase in litigated matters makes it more urgent to consider a comprehensive plan to manage legal spend and improve litigated outcomes.