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In-House Counsel's Role In Keeping Litigator Ego In Check

Ken Lopez
By: Ken Lopez

Jury Consulting, Mock Trial, Litigation Consulting, Jury Consultants, Psychology, Storytelling, Practice, Opening, In-House Counsel

 

litigator-ego-id-inouse-counsel-winning-managementby Ken Lopez
Founder/CEO
A2L Consulting

I've seen litigator ego contribute to the winning of cases and the losing of cases. Unfortunately, however, I've seen more cases lost because of it than won because of it.

What do I mean by the ego of a litigator? If you've worked around litigators (or litigation consultants for that matter), you already know what I mean. For anyone else, I'm referring to all those first-chair litigators in trial-related situations who put themselves ahead of the client's best interests.

The best definition I have found of “ego” is "the idea or opinion that you have of yourself, esp. the level of your ability and intelligence, and your importance as a person." 

In litigation, we see how ego can play both good and bad roles. Sometimes the presence of ego leads to good outcomes, as it is at least in part ego that allows a litigator to ignore the advice of a client who may be too close to their problem. More often, however, we see ego show up in ways that are counterproductive for the client. For example, in situations where:

  • First-chair waits until the last minute to prepare the opening
  • First-chair prepares the opening alone
  • First-chair rules the trial team with an iron fist
  • First-chair berates fellow members of the trial team
  • First-chair refuses to practice opening and closing statements
  • First-chair won't do a mock exercise for fear of looking bad
  • First-chair does things the way they have been doing them for 30 years

What's wrong with all of these situations? Well, one way or another, they are all bad for the client. Worse, 90 percent of the time, the client has no idea that this is happening. So, what is a client to do?

For the past year, I've been encouraging Fortune 500 in-house clients to get more involved in trials than they have been over the past 30 years. While there are exceptions, most big companies simply hire their litigator buddies or those who have generated good results in the past and then just step out of the way.

I think that was the right approach for a long time, and most of the time, it's still a useful mindset. However, I prefer to see clients treat their outside litigators as a good manager would. That is, they should delegate effectively AND they should hold the client accountable.

I wrote about 25 Things In-House Counsel Should Insist Outside Litigators Do a number of months ago, and it has been a very popular article. The follow-up In-House Counsel Litigation Toolkit has been downloaded over 1,000 times since its December release. These and other resources speak to the concept of delegating effectively. That is, it is important to explain to outside counsel which decisions are, in corporate speak, root, branch and leaf level delegation decisions. It used to be the case that everything except settlement was delegated to outside counsel, but those days are long gone. The same is true for holding people accountable. You must follow up to make sure it gets done the way you want it done. 

There are several things I think in-house counsel must insist on to make sure that ego does not interfere with the outcome of the case.

  • Practice - either in the form of a mock trial or just an open practice session where in-house counsel participates.
  • Storytelling - in-house counsel must hear a compelling narrative from outside counsel as soon as possible, at least many months before trial.
  • The Company’s Story – in-house counsel should make sure the company’s story is being articulated in such a way that it does not cause harm in another case, in the press or with investors. 
  • Consultation – even the most brilliant trial lawyer should consult with his or her client about key strategic decisions in the trial.

It is true that these ideas don’t represent the way things were done 30 years ago. But juries and trials and companies are not the same as they were 30 years ago.

Other articles related to in-house counsel, trial teams and litigation management from A2L Consulting include:

in-house counsel litigation toolkit e-book free download

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