ACC Docket 57 May 2012

Can you learn better dispute resolution from non-lawyers?Today’s business environment is global, complex and fast-changing.

Clients must reassess, revise and sometimes reinvent their operational assumptions and processes. Lawyers need to do the same when think-ing about how to resolve disputes. When lawsuits arise, our value-add must be more than delivering mere “lawyer Latin” or civil procedure expertise. Instead, our clients expect excellence in lawsuit process management. In fact, with a tightening economy, our persuasive, pro-active management of legal projects is increasingly important.

Remember, regardless of practice area, clients look to counsel for sophisticated stewardship of disputes. So, why not look up from legal history, and focus on clients’ operational innovations and best prac-tices to seek tools for improving lawsuit management?

BY HENRY W. (HANK) JONES, III AND REBECCA LORANCE

IMPORTING INNOVATIONS FROM OUTSIDE THE LAW FOR OPTIMIZED LITIGATION CONTROL AND OUTCOMES

ACC Docket 58 May 2012

Healthcare industryLitigation often feels like surgery to clients, full of

high stakes and bloodletting. However, surgeons and other health professionals regularly evangelize “measure twice, cut once.” Healthcare professionals can’t afford to blindly stick to singular facts; they must actively seek out our diverse and divergent views in order to make an optimal medical determination.

Tip: Consider requiring a second (or third) opinion before making large strategic decisions in big or moderate cases. Solicit different perspectives from colleagues, industry leaders and even opponents to assist in evaluating lawsuit strategy, litigator hiring, courthouse services vendor, experts, expensive electronic discovery or settlement. Very few of us would agree to risky surgery without seeking an expert second opinion. So why should our clients undergo “business surgery via litigation” based on only one opinion? We should just view these upgrade steps as prudent “pre-op litigation surgery.”

Construction and architecture management In the business of building buildings, process optimiza-

tion is achieved by assuring a “second set of eyes.” In fact, the property owner’s interests are protected by not only the architecture firm, the contractual obligations of the gen-eral contractor and the applicable building codes, but also an “owner’s representative.” A second, supplementary set of domain experience and judgment supports the owner’s interests. When ambiguities, challenges or changes arise in blueprints, subcontractor selection or other building tasks, the onsite team (including a veteran subject matter expert, “the owner’s representative”) can quickly and independently assesses the issue and makes a recommendation to the architect and contractor.

Tip: Have a “second set of eyes.” Include an industry-specific niche lawyer on the team who knows the particular industry’s vocabulary, resources, processes and risks that are likely unknown to the typical generalist, multi-industry courthouse lawyer. Preclude unilateral strategic decisions, overspending or miscalculations by your primary litigators by requiring, enabling and confirming their utilization and inclusion of a domain-veteran lawyer.

Manufacturing supply chain managementPrudent purchasers of physical goods often “overlook”

their immediate suppliers. That is, savvy customers look farther, inspecting the quality of the supplier’s “upstream” sub-suppliers. Supply chain professionals check their indirect vendors’ financial strength, regulatory compliance, environmental, safety and other potential exposures.

A “traditional” legal approach to litigation isn’t good enough. High-quality litigation manage-ment means more than upgraded requests for proposals (RFPs) to law firms, aggressive alternative fee arrangements (AFAs), well-defined alternative dispute resolu-tion (ADR) contract terms, cost-cutting legal process outsourcing (LPO) services, decision-tree analysis and blended teams (i.e., litigation projects staffed by both client employees and law firm representatives).

These procedures can reduce lawsuit delays, bloated costs and bad results. However, they are no longer sufficient for optimiz-ing litigation outcomes and cost controls.

Why look beyond the law for litigation improvement?There’s no appeal to our clients that current choices for

litigation management were optimized long ago, and need not and cannot be changed. Instead, there is much to be learned from our business colleagues.

Very few of us possess supply chain, quality control or process methodology training. After all, law schools typi-cally don’t offer training in Six Sigma, extranets, business process excellence and Project Management certification.1

Our clients’ business sectors demonstrate the ongo-ing evolution and active adoption of process changes, and effective tools that are well-known to managers — even if such concepts and resources historically have been un-known to and unused by lawyers. Automation, outsourc-ing, “business process re-engineering” and other change management initiatives are the norm in business. Our clients won’t be persuaded that legal disputes cannot be approached and possibly better resolved by new rules. Our charge is to proactively manage the litigation, outside counsel and vendors, so when adverse litigants or expen-sive litigators appear to dictate the litigation landscape and costs, we can provide our client proof of process quality optimization in our litigation management.

Borrowing from business: What new tools can you use?

Here’s a menu of ideas and processes that a proactive litigation manager who understands the conventional legal concepts, but wants to go beyond the basics, might deploy in future litigation:

HENRY W. (HANK) JONES, III is a 32-year information technology lawyer and twice-former

head counsel at global publicly traded corporations. Presently, he is a solo practitioner focused on information technology issues, including transactions, lawsuits, risk mitigation and corporate training, based in Austin, Texas. Jones is a previous ACC Docket author and can be contacted at memphishank@gmail.com.

REBECCA LORANCE is senior litigation counsel for Dell in Round Rock, Texas. She serves

as co-chair of ACC’s Litigation Management Committee. Lorance has 12 years of corporate legal experience working with various Fortune 500 companies. She received a JD and MBA from the University of Kansas, and can be contacted at rebecca_lorance@dell.com.

Software development Application software development frequently utilizes a

phased approach that involves outlining, refining, and only later, fully defining the particular aspects of the custom software. The initial plan or contract does not include the granular details of the results, documents and deliv-erables expected of the vendor. The customer (also called the planned “user”) reviews, refines and approves each plan phase, with its increasing detail, including producing aspects and costs.

Tip: Set up a phased litigation management method to refine and prioritize among litigation goals, staffing alternatives and discovery plans. Elaborate preliminary expectations and strategies after initial rounds of pleading, discovery, mediation or negotiation. Specify more at later stages how each goal can be supported, such as by deploying in-house corporate staff, lower-cost local counsel, adding industry specialists as co-counsel and other resources. Consider vetting all deposition, interrogatory, request for production and negotiation settlement plans and documents for the client before responding, as a collaborative process requirement.

Tip: For lawsuits, ask yourself how much you know about, and when and how you control, outside counsel’s purchasing of expert witness services, electronic discovery, equipment rental, investigators and other indirect litigation support vendors. What conflict of interest, background checks, optimal pricing, noncompetition or other corporate concerns are addressed and implemented by specific, written services contracts before deployment?

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Set up a phased litigation management method to refine and prioritize among litigation goals, staffing alternatives and discovery plans.

ACC Docket 60 May 2012

Project management Project managers plan for discrete projects with identifi-

able objectives, limited resources and a finite time dura-tion. This discipline requires the effective integration of people, technology and tasks. Particular software, certifica-tions and methodologies are deployed in a wide variety of corporate projects, including new product development, training, product launches and other activities.

Litigation management, like project management, is a dynamic process.

Tip: Manage your litigation (including team members) to validate or alter earlier believed exposures, advantages and client priorities on a predefined schedule. Consider if the relative strategic and tactical benefits and costs to the client changed after the Rule 26(f) conference. Routinely consider if any changes in the scope, quality, time and costs of electronic discovery, witness depositions, indemnity and even business objectives may alter the litigation strategy.

Management consulting Successful litigation management is a function of

people. This includes outside counsel and support staff. Could it be that simple? Yes. Savvy management consul-tants never forget this elemental truth: People make the difference.

Tip: Litigation management success depends on the proper care and feeding of your frontline troops. We cannot afford to neglect this increasingly crucial strategic advantage. Our front line team must be treated as the heroes that they genuinely are. Consider overinvesting. Spend more time with your support team. Pay them well. Listen, recognize and empower them. It will make all the difference.

Sales A top salesperson routinely acts on two main questions:

“Why did I lose?” and “Why did I win?” In business, a salesperson persuades a customer to buy or take action be-cause the benefit or action will fill a need. This persuasion is born out of understanding the environment — i.e., the customer’s priorities, resources and decision-making pro-cesses. Many vendors engage in elaborate “loss analysis,” including hiring specialty consulting firms to investigate and identify the causes of a lost sales opportunity

Tip: Consider the cause(s) behind lawsuits, mediations or arbitrations. Add potential “loss (or win) analysis” to your litigation plan. Schedule post-trial juror interviews to discover their perceptions, beliefs and preferences. After the dust settles, consider even asking opposing counsel for their

views on what went right or wrong. Share lessons learned with the litigation team and business colleagues as appropriate.

How can you sell these changes today?Change is hard. Although some of these principles for

optimizing litigation management may appear simple, their application can be very complex. Poorly conceived or ex-ecuted plans can lead to failure. Here are some suggestions on how persuasive internal advocacy of litigation manage-ment process change can be achieved:

Peer collaboration: Review the projects and publi-cations of ACC, your state bar and other litigation management groups. Look beyond lawyering: Seek publications from other professions struggling with cost-cutting and service delivery overhauls. For example, recent books of Atul Gawande, MD, Better and The Checklist Manifesto, thoughtfully challenge assumptions about service excellence, process clarity, and quality and change management. The analysis, attitude and ac-tion recommendations prescribed by this heralded author justifiably have become business best-sellers.2 Also, learn lessons from effective people leadership best-sellers like In Search of Excellence by Thomas J. Peters and Robert H. Waterman, Jr. or any of Dale Carnegie’s books.Targeted market research: Internal political support may be necessary to move away from traditional litigation approaches. If new to litigation planning, budgeting and outcomes assessments, benchmark-ing against peer companies can help. Research and

Internal political support may be necessary to move away from traditional litigation approaches. If new to litigation planning, budgeting and outcomes assessments, benchmarking against peer companies can help.

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No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. Contact: John B. Grenier, Esq., 1819 Fifth Avenue North, Birmingham, Alabama 35203

What we know.We know that having six L&E attorneys listed among America’s Best Lawyers is worthy of celebration.

We know that excellent client service is every bit as worthy of celebration as being nationally ranked.

We know that, while these six L&E attorneys deserve our hearty congratulations, our entire L&E team is of the same caliber.

We know that, in the end, we’re only as good as the last matter we handled.

That’s what we know.

AMONG THE NATION’S BEST LAWYERS

ACC Docket 62 May 2012

In the endToday’s ever-evolving business environment re-

quires new approaches to litigation. Lawyers who want to compete and succeed on a world-class level must understand litigation process management and optimi-zation. In-house counsel must be the legal “architects” and “process engineers” who can work across corporate “levels” and among multiple business functions, con-tinuously improving the business and fostering bench-

mine competitive companies’ public disclosures (e.g., government regulatory filings), PACER (US federal court), and local and state court indexes to identify third-party litigations.3 These artifacts can help educate and correct clients’ expectations regarding the potential, time, effort and costs exposures of litigations — and can show a “litiga-tion x-rays and autopsy” to confirm and explain the lawsuit woes of other companies, and provide sup-port in litigation budgeting. This research may help determine the litigation pace, interim rulings and results of those litigation fights. In fact, sometimes, the litigator billing rates and damages rulings can be identified, to aid in specific litigation budget modeling. This may support a litigation manage-ment business case to steer away from troubles by taking a nontraditional direction.The ugly truth: Unstick the “If it ain’t broke, don’t fix it” mode by baring the ugly truth. Educate and per-suade the client that it can be worth the change to modify and adopt processes to new environments.

ACC DocketHow Tomorrow Moves: CSX Uses Scorecards to Help Outside Counsel Stay on Track (Oct. 2011). www.acc.com/docket/csx-scorecards_oct11

InfoPAKSM

Managing Value-Based Relationships with Outside Counsel (Aug. 2011). www.acc.com/infopaks/ocmgt_jan06

Quick ReferenceManaging Outside Counsel: Checklist of Conversations (Oct. 2011). www.acc.com/quickref/moc-convo_oct11

Forms and PoliciesSample Outside Counsel Guidelines (AM 2011). www.acc.com/forms/socg_am11Outside Counsel Retention Generic Letter Form (April 2011). www.acc.com/forms/generic-retention_apr11

Top TensTop Ten Considerations When Evaluating a System for Managing Outside Counsel Work (March 2011). www.acc.com/topten/managing-oc_mar11Top Ten Practical Suggestions for Managing Outside Counsel Spend (March 2011). www.acc.com/oc-spend_mar10

PresentationsOutside Counsel Management — Project Management for In-house Counsel (Oct. 2011). www.acc.com/ocm-pmic_oct11 Outside Counsel Management — Using Value-Based Fee Structures for Corporate/Transactional Work (Oct. 2011). www.acc.com/ocm-vb-fee_oct11Outside Counsel Management: Leveraging Data and Technology for Successful Value-Based Relationships (Oct. 2010). www.acc.com/oc-mgt-d&t_oct10

EducationFor more information on litigation management, come to ACC’s 2012 Annual Meeting and attend Session 1003 – Straight Talk: In-house Litigation Tips and Management Techniques; Session 1007 – Muscular Arbitration: What Corporate Counsel Can Do to Shape Up Arbitration; or any of the other sessions on the “Litigation & Dispute Resolution” track. The 2012 Annual Meeting will take place Sept. 30 – Oct. 3 in Orlando. Check out the entire program schedule and register at http://am.acc.com.

ACC has more material on this subject on our website. Visit www.acc.com, where you can browse our resources by practice area or search by keyword.

ACC Extras on… Optimized Litigation Control and Outcomes

Educate and persuade the client that it can be worth the change to modify and adopt processes to new environments.

Lisa: Learn as you go? Vinny: Yeah, yeah. Lisa: Didn’t they teach that in law school? Vinny: No, that’s not what they teach you. They teach you

contracts, precedents, interpretations. And then the firm that hires you, they teach you procedures. Or you can go to court and watch.

2 Gawande is a winner of the MacArthur Foundation unrestricted cash “genius prize,” a practicing surgeon, a surgery professor at Harvard Medical School, and New Yorker magazine columnist. His Oct. 3, 2011 article, “Personal Best,” argued that even experienced, apparently successful surgeons should seek and deploy a specialist executive coach, after his counseling by a retired surgeon led to improved surgery outcomes. (Available at www.newyorker.com/reporting/2011/10/03/111003fa_fact_gawande?printable=true.) Do your litigators have enough humility, desire for excellence, and flexibility to hire such personal-productivity help?

3 Low-cost, remote downloading from courthouse databases of competitors’, customers’, vendors’ and other parties’ lawsuit sagas also can yield vivid, chronological visualization of the prospective return on investment of compliance, training, contracting optimization and other non-litigation corporate counsel concerns.

marking, quantification, innovation, risk-taking, quality and self-improvement.

Leaving litigation and lawsuits to their own momentum, or only to outside counsel’s decision-making, can be court-ing disaster. But incorporating business techniques and processes can lead to better litigation outcomes. After all, “Knowledge is of no value unless you put it into practice” (Anton Chekhov).!

Have a comment on this article? Visit ACC’s blog at www.inhouseaccess.com/articles/acc-docket.

NOTES

1 The popular criminal trial comedy film “My Cousin Vinny” arguably supports this premise. The overconfident protagonist litigator is bailed out of jail for contempt of court by his fiancé, who then interrogates him: Lisa: So you think you know what you’re doing? Vinny: Yeah, I think I know what I’m doing. Lisa: ‘Cause you didn’t look like you knew what you were

doing today in that courtroom. Why is that? Vinny: Well, it’s a lot of procedure. That’s all. I’ll learn it as I go.

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