by Ken Lopez
One month ago I wrote an article titled 9 Things Outside Litigation Counsel Say About In-house Counsel, and we recently included it in our free In-House Counsel Litigation Toolkit e-book. It is a popular piece read by several thousand people so far. Today's article looks at what is being said by in-house counsel about outside litigation counsel.
I've spent a lot of time talking with in-house counsel from large companies over the past two months. They have a lot to say about outside litigation counsel that I don't normally see reported in the popular press.
I expected to hear that outside counsel need to learn to manage budget and find ways to save money, since that's what I mostly read in legal publications. I heard some of that, but the feedback is more nuanced than simple price pressure, and the feedback speaks to a desire for more creativity from outside litigation counsel.
Of course, since I am most often talking to in-house counsel about jury consulting, litigation consulting and litigation graphics consulting, most of their comments relate to those subjects. With that in mind, here are nine things I've heard in-house counsel say about outside litigation counsel recently:
- "We have to stop deluding ourselves. At trial, the law is background noise." Big companies are frustrated with having the law on their side and still losing jury trials. As one in-house lawyer said to me, "it is clear that having a good story is important, as one can be right on the facts and the law and still lose." I agree completely, and we have made this point many times in our Storytelling for Litigators ebook and Storytelling for Litigators webinar. More and more, getting the story right is the focus of what A2L Consulting is hired to do as litigation consultants.
- Opposing counsel is often more trial-savvy than our outside litigation counsel. Defense-focused litigators from large law firms rarely go to trial, whereas their opposition in many types of cases like product liability, employment, securities and other case types, go to trial quite often. Plaintiff's counsel are quite comfortable relating to a jury, because they do it so often. Their experience comes across in their body language. Defense counsel must make up for this shortcoming with more frequent and repeated practice. Litigation consultants have an obvious role to play here in conducting structured practice, whether in front of a mock jury or more simply, in front of litigation consultants.
- Gone are the days when one law firm would manage a relationship for the company, so some cost efficiencies get lost as a result. This includes how the company story is told from case to case and understanding the business well enough so that problems are avoided during litigation that might cause much bigger problems elsewhere (e.g. with investor relations or with marketing).
- In-house counsel want to hear outside counsel articulate a persuasive story for the case early, not only close to trial. You can add "the client is tired of it" to my list of The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation, because they are. Last minute trial prep makes bills higher not lower, and in-house counsel gets it. See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe
- In-house wants to understand how persuasive the opposition's story is. Too often it seems, the strength of the opposition's case is not well described, internalized or properly assessed early enough. See 7 Reasons In-House Counsel Should Want a Mock Trial.
- "If a trial team says it has all the answers, it's time to find new outside litigation counsel." Working with litigation consultants makes sense for many reasons but particularly because of the rarity of trial for most litigators vs. the incredible frequency of trials for litigation consultants. In-house understands this point much more so than I imagined before interviewing so many recently. See Accepting Litigation Consulting is the New Hurdle for Litigators.
- In-house counsel wants to offer input on the story told at trial. Too often, in-house counsel gives feedback but, as one said to me, "some words may change, but the book stays the same." The benefit of practice with in-house included early is something I've heard over and over.
- Most litigators get locked into their approach, and what won cases thirty years ago, may not work today. We like trusted advisors who help us win, but they must prove that they change with the times. See, 19 Ways in Which the World Has Changed Since 1995.
- Litigation budgets are often best addressed through early case assessment. By analyzing whether a case should advance toward trial early on, money can be saved by settling early. Creativity here is especially important and is often hard to find. I think the work of author Dan Pink describing the role of creativity in the modern workforce is especially relevant here. See, Daniel Pink, Conceptual Thinking and Trial Consulting.
Other articles and resources related to the work in-house counsel, outside litigation counsel and litigation consultants do together from A2L Consulting include:
- Litigator & Litigation Consultant Value Added: A "Simple" Final Product
- Free Download: The In-House Counsel Litigation Toolkit
- In-House Counsel Should Make Outside Litigation Counsel Feel Safe
- 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do
- 7 Reasons In-House Counsel Should Want a Mock Trial
- 14 Differences Between a Theme and a Story in Litigation
- Accepting Litigation Consulting is the New Hurdle for Litigators
- 5 Tips for Working Well As a Joint Defense Team
- 7 Videos About Body Language Our Litigation Consultants Recommend
- How I Used Litigation Graphics as a Litigator and How You Could Too
- In-House Counsel Hiring Methods for Litigation Counsel Are Surprising