“That scenario probably still goes on to a certain extent but by and large that is historically gone,” said Eric Sigurdson, general attorney, staff legal with TD Insurance last week. “What we have today is a partnership where the client and external firm work together and build a litigation plan with roles and responsibilities clearly defined.”
“External counsel needs to view the problem from a broader, less parochial perspective than they have historically and in-house counsel need to be part of issuing instructions on the file. There needs to be early case assessment and a shift in the focus from processing a lawsuit and drifting through the stages to resolving the business problem,” he said.
The panel, organized by the Canadian Corporate Counsel Association’s Ontario chapter and entitled: “Litigation management part II: Implementing project management to improve effectiveness and efficiency,” looked at the tools available to in-house and external counsel to improve management of litigation files. Project management is just one tool, along with RFPs and electronic invoice review, that can help in demonstrating the litigation file was managed balancing cost, risk, and results, said Sigurdson.
It also increases efficiency for in-house legal departments to monitor, assess, provide instructions, and hold external counsel more accountable to budgets. All of which offers greater predictability.
“About 98 per cent of litigated files will settle and we need to drive the files as efficiently as possible to that stage,” he said.
Legal project management or litigation project management is a topic that requires some demystification, said panellist Steven Rosenhek, a partner with the litigation group at Fasken Martineau DuMoulin LLP. “There are many lawyers, both external and in-house, who think they know about project management but are afraid of not being sure they really do know it. They want to understand it or use it but are concerned it requires more work than is actually required.”
Sigurdson outlined four pillars of legal project management:
• assessment and strategy
• case management
Rosenhek calls the four pillars “common sense.”
“As you continue to do work for a company, you get a better sense of what their expectations are,” he said. “A plan is meant to be a living document revised after every significant event in the litigation process. At the end of the day there is nothing all in-house counsel agree on except for the fact they want no surprises.”
Whatever strategy a legal team ultimately agrees on with outside counsel, they need a litigation plan, said Sigurdson. It should involve a schedule of deadlines and everyone on both sides commits to the deadlines.
“It protects you as internal counsel,” said Rosenhek. “There should be no argument on why it is not moving any faster. A schedule of deadlines means everyone on the team internally commits to the deadline and everyone from the client side agrees to the deadlines. It protects you as internal counsel and there should be no argument as to why is it not moving any faster.”
A litigation plan also sets out roles and responsibilities.
“It’s not done in a vacuum,” said Sigurdson. “It’s done between the client and legal team working together. The historical problems of lack of strategy and instructions happened because the client would just hand the file over to the [law firm] and say, ‘Let me know when you have it resolved.’”
The litigation plan will need ongoing revision. It should also include expectations around progress reporting. Sigurdson said he insists on various types of reporting on files including what’s happening at discovery, and whenever new information comes along such as an offer to settle. When things are going slowly he asks for a report every 90 days. As well, budget and expense estimates should be addressed in every report.
“Timelines and early assessment are important,” said Sigurdson. “In the past, files drifted and then you would get a bill and in-house counsel would be surprised. With budgets you’ll never be surprised — you may be disappointed, but you won’t be surprised and that’s key.”
The budget should do three things:
• provide planning
• provide approval
• provide control for the client
Another tool Sigurdson recommends is electronic invoice review.
“E-billing is really helpful. When the bills come in through e-invoice, the program will scrub the bills to make sure that whatever rules you’ve agreed to — possibly no photocopies, for example, or identifying block billing issues. Then you can compare it to budget and what was agreed to with external counsel,” he said.
“An e-billing system can provide three- to five-per-cent savings in the first year. That was our experience. In our case we have thousands of files to track.”