By Barry Weiner
This is the final installment in a six-part series by Boston attorney Barry Weiner on litigation management.
In preparing for trial, it is important for in-house counsel to re-engage the relevant business managers and, if necessary, the appropriate company officers before the preparation process with trial counsel starts in earnest.
Even with leadership that is reluctant to take the time, in-house counsel should be persistent if unwanted surprises are to be limited, solid decisions maximized and expectations managed.
Such discussions should review the process and procedure and the issues to be tried and should provide an updated evaluation of those issues along with an updated cost-benefit analysis in going forward.
In preparation for these discussions with management, in-house counsel should have had in-depth discussions with outside trial counsel as to these very same matters. Depending on the complexities of the issues and the personalities and relationships involved, it may be advisable to have outside counsel join these discussions with company management at the outset or at some point.
Discussions with management
Even with experienced, sophisticated management, don't make too many assumptions as to what they know and appreciate. Go through the various stages to decision and post-trial, including appellate rights. Having the pre-trial disclosures as to witnesses, exhibits, stipulations and positions of both sides to refer to should be of significant assistance to you in not only describing the process but the issues and evaluation as well.
In addition, if existing company personnel are designated as witnesses (including management), review the necessity of appropriate preparation including the time involved through trial.
Cost-benefit analysis
In developing a cost-benefit analysis before trial for discussion with company management, it will be necessary to obtain from outside trial counsel not only an updated breakdown of projected legal costs and expenses but also an updated evaluation of the claims/defenses. This should occur after the conclusion of discovery and any decisions on dispositive motions along with a range of probable monetary results and percentages and reasoning.
Taking these measures will enable in-house counsel and company management to have an informed and meaningful discussion about settlement versus trial and facilitate a solid decision-making process as well.
Mediation option
It is also an appropriate time to visit/revisit whether mediation is an option that ought to be explored.
Even if the case had previously been mediated without resolution and even though the case is in an advanced stage, discussion of this option should be on your checklist.
With discovery completed and dispositive motions disposed of, the parties will have a much clearer perspective on the strengths and weaknesses of their claims, defenses, damages and the exposure, including cost through trial and potential appeal.
In-house witness preparation
Finally, if the case is not disposed of by settlement and must be tried, in-house counsel should monitor the preparation of in-house witnesses to ensure their cooperation and effectiveness and to further develop team-building.
In a coordinated manner with outside trial counsel, make sure in-house witnesses understand the nature of the claims/defenses and how their testimony fits into the overall case and the importance of their preparation and role in the trial. Without such an explanation, the in-house witnesses may never fully appreciate their role, and their preparation and performance may suffer. With that understanding, the in-house witnesses will feel part of the team and should participate more enthusiastically and perform more effectively.
Obviously, the extent to which information is shared with in-house witnesses will depend on their position within the company and the scope of their expected testimony, balanced against their need to know and the potential for information overload.
Further, if the in-house witnesses are part of company management, more information, including strategy and the reasoning behind it, is probably helpful on all fronts.
Attendance at trial
Although scheduling conflicts, particular issues or the weight of the matter may dictate your decision not to attend the trial, keep in mind that your presence during trial is generally a reassuring factor for those company witnesses and to company management.
Also bear in mind that your presence will provide you with an excellent opportunity to evaluate the preparation and performances of all involved, including yourself - an important factor in discharging your responsibilities.
A founding partner of the Boston-based law firm of Ruberto, Israel & Weiner, Barry Weiner has been a business trial and appellate lawyer for more than 40 years. He also has served as an arbitrator, mediator and master in the courts. He teaches advanced alternative dispute resolution at Boston University School of Law. He can be reached at byw@riw.com.
November 2008 / NEIH
