1. business and industrial
2. business operations
3. management
4. project management

Litigation on a Budget:
Managing the Case, the Cost and Outside
Counsel
CBA/CCCA Annual Conference
Halifax, Nova Scotia
August 15th, 8:30-11:30 a.m.
Panel Participants:
Terrie-Lynne Devonish, Chief Counsel, Aon Canada
Philippe Dufresne, General Counsel, Canadian Human Rights
Commission
Steven Rosenhek, Partner, Fasken Martineau
Richard Stock, Partner, Catalyst Consulting
Moderator: Carla Swansburg
2
Overview of Presentation Topics
1.
2.
3.
4.
5.
3
Dividing Legal Work between Inside and Outside
Counsel
Developing a Strategic Litigation Plan
Using Project Management Principles to Budget
Criteria for Selecting and Evaluating External Counsel;
Measuring Results
Selecting and Negotiating Alternative Fee
Arrangements
Note regarding session on Alternative Fee
Arrangements:
Participants will be asked to complete a brief
questionnaire on AFAs and to hand it in as the
break begins. These will be triaged during the
break so that the panelists can address the key
questions in the second half of the session and in
the Q&A segment after the session if it is needed
Selecting and Negotiating Alternative Fee
Arrangements
4
Dividing Legal Work between Inside
and Outside Counsel
• Using in-house or outside counsel?
• Pros and cons of both approaches
5
• Litigation and legal advisory work: does it
affect the choice of in-house versus
outside counsel?
• Factors to consider: costs, experience,
risk, long-term v. short-term, corporate
culture, public relations, counsel credibility.
6
• The experience of the Canadian
Human Rights Commission Legal
Services: strategic litigation and
increased reliance on in-house
counsel.
7
Developing a
Strategic Litigation Plan
8
•
•
•
•
•
Litigator = trusted business advisor
Understand the business/industry
Frank strategic advice
Proactive
Essential discussion
Goal is cost effective and efficient
management of litigation
9
Goals of a strategic litigation plan:
• Clearly define responsibilities between
internal and external counsel
• Mutually establish objectives (legal and
business)
• Assess the case
• Establish plan
• Establish budget
• Communication plan
• Monitor performance against objectives
10
Clearly define responsibilities
between internal and external
counsel
–Document management
–Witnesses within client
–Reporting
11
Mutually establish objectives
(legal and business)
–Business considerations
–Philosophy
–Precedent/publicity
–Budgetary issues
12
Assess the Case
–Strengths/weaknesses
–Frank assessment
–Required to establish litigation
objective and settlement stance
13
Establish plan
• Think outside the box/summary
procedures
• Detailed road map
• Based on objectives
• Phases of litigation
• Discovery plan
• Documents/experts etc
14
Establish Budget
• Preferred staffing model
• Phases of litigation
• Billing guidelines
15
Communication plan
• Reporting
• Quarterly reports/extranet
• Media plan
16
Monitor performance against
objectives
•
•
•
•
17
Revisit periodically and following case
Quality assurance/audit
Metrics
Lessons learned
Developing a Strategic Litigation Plan
• Philosophy
–Advocacy
–High Ethics
–Motion Practice and Discovery
–Settlements
18
• Initial Requirements of Outside Counsel
– Strategy
– Feasibility of alternative fees
– Whether a budget will be required and, if so,
in what form
– Agreement to the level of oral and written
communications expected by in-house
– completed Early Case Assessment analysis
within an agreed-upon period
– Consideration of ADR
19
• Early and continuous case assessment
– Create an early case assessment with
external counsel within the first 2-3 months of
the case
– Follow up with in house/external counsel
meeting to develop an approach to the
litigation
– Discussion of approach to settlement
– Review assessment and strategy at least
once a quarter
20
• Factors in determining approach to
litigation
−
−
−
−
−
21
Legal position
Liability
Business issues
Budget and cost
Reputation and
publicity
− Precedent
− Time
− Witnesses
Early Case Assessment Report
Solicitor-Client Privilege
Date
LAWYER COMPLETING ECA:
CASE ID
Case Name:
Court:
Docket No.:
Judge:
IN-HOUSE
Matter No.:
Supervising lawyer:
Business Unit:
.
Business Unit Contact:
OUTSIDE COUNSEL
Primary Counsel:
Opposing Counsel:
COURT
OPPOSING COUNSEL
PARTIES
Plaintiff:
Defendants:
PARTIES – COMMENTS
RELATED LITIGATION
22
Early Case Assessment Report (cont'd)
BACKGROUND
KEY DATES
POTENTIAL EXPOSURE
EXIT STRATEGY
ALLEGATIONS
MATTER STRATEGY
NECESSARY ELEMENTS OF
PROOF AT TRIAL UNDER
APPLICABLE LAW
PLAINTIFF'S TRIAL THEMES
OUR TRIAL THEMES
DEFENSES
OUR KEY WITNESSES
KEY PLAINTIFF WITNESSES
KEY DOCUMENTS
23
EVALUATION OF POTENTIAL
LIABILITY
SETTLEMENT
BUDGET
Example of litigation vs. settlement cost
analysis and strategy
Matter(s) in Issue
Defences
a
Additional claims? (counterclaim,
crossclaim, third party claim)
Settle – mediate or offer to settle
Cost A
Dispositive Motion?
Discovery
Trial
24
Cost E
•
Regular comparison of
success with each defence
step as against settlement
•
Regular comparison of
"dispute" costs at various
stages of the litigation as
against settlement cost
•
Cost = legal fees, settlement
amount, judgment
Cost B
Cost C
Cost D
• External counsel management
– Keep in-house informed of all significant
issues
– Consult with in-house on all significant
strategic and tactical decisions (e.g. unusual
defenses, dispositive and significant motions,
discovery plan, ADR, settlement and
estimated costs)
25
Using Project Management
Principles to Budget:
How can LPM help?
26
Brief Introduction to Legal Project
Management Principles
– Really just a set of tools and guidelines for
“best practices”
– No magic bullet but a way of organizing your
practise
– Allows greater efficiencies, leads to improved
communication between and counsel
27
• Primary benefits (justifications) for using
PM:
– Budgeting!
– Improving communication among
stakeholders
– Efficiency/process improvement
– AFAs
– Knowledge Management
28
• Key components of a project plan:
– Scope
– Work Breakdown Structure
– Communication Plan
– Budget
– Deliverables: Project Assets
29
• Scope
– Key planning phase
– Ask/Listen: What does “Done” look like?
– What’s in, what’s out?
– Clarity of expectations
– Build in assumptions
– Necessary for accurate budgeting
30
• Work Breakdown Structure
– Planning stage
• Top down or bottom up
• Templates, existing experience
– Articulate steps to be taken (task list)
– Time management/Gant Charts/critical
paths
31
• Communication Plan
– Stakeholders:
• Responsible
• Accountable
• Consulted
• Informed
• Change management vs. “scope creep”
• Litigation uncertainty? “Progressive
Elaboration”
32
Budgeting using LPM
• Economic Imperative: More for Less
• Pressure to deliver AFAs
• In-house counsel facing budget cuts,
scrutiny of spend
• Ensure firms can remain profitable,
lawyers can remain engaged
33
The Iron Triangle
34
• Triple constraints of Time, Cost and
Quality – key to understanding client’s
priorities
– What is “must have” and what is “nice to
have”
– Helps focus priorities
– Key for budgeting under specific constraints
35
• Work Breakdown Structure provides a
basis for creating a budget
–Problem of too much vs too little
–Assigning resources to tasks
–Refer to triple constraints
• Large “one off” files versus repetitive
cases types
36
• Metrics and Experience are Key!
– Don’t start with a blank sheet of paper!
– Time and billing systems as a resource
– Project assets must include cost experience
• Managing to a budget and change
mangement
• Process Improvement as an Evolution
37
SHORT BREAK
Please return in 15 Minutes
38
Criteria for Selecting and Evaluating
External Counsel and Measuring
Results
• Overview of potential considerations
• Key criteria for Selecting Counsel
39
• What are the key objectives of the
file?
• How do these objectives shape your
alternatives and your choices?
• Selecting teams, selecting firms,
selecting lawyers
40
Measuring Success:
Metrics for Retaining External Counsel
• What are the key performance factors you
should be measuring?
• How do you measure those?
• How do you complete the feedback loop?
41
Small Group Discussions: Measuring
Success with External Counsel
• Exercise: Within each table group, discuss the
following questions. Record your group’s
answers on the sheets provided. A member of
our panel will facilitate your discussion.
Following these discussions, each group will
debrief to the larger group.
42
Small Group Exercise: Measuring Success with
External Counsel
Question 1: What are your one or two “biggest
beefs” about external counsel (e.g. a practise, a
process, a method of communication?)
Question 2: What are the top one or two things
that have impressed you most about your
external counsel?
Question 3: What is the best practise you have
used, seen or heard about for measuring
success with external counsel?
43
Selecting and Negotiating Alternative
Fee Arrangements
• Overview of AFAs
• Where are hourly rates headed in the next
5+years?
• Need for predictability in regular and
complex work
44
Selecting and Negotiating Alternative Fee
Arrangements
• The three basic fee types and hybrid
arrangements
• How fee arrangements affect
internal/external behaviours
45
Selecting and Negotiating Alternative Fee
Arrangements
• Relationship between AFAs and Project
Management
• How to define AFAs for regular vs complex
work
• Change management in AFA
arrangements
46
Q&A
47
Thank You!
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