Strategies for In-House Counsel to Reduce Litigation Costs: - - PowerPoint PPT Presentation

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Strategies for In-House Counsel to Reduce Litigation Costs: - - PowerPoint PPT Presentation

Sep 04, 2023 264 likes •569 views

Presenting a live 90-minute webinar with interactive Q&A Strategies for In-House Counsel to Reduce Litigation Costs: Insourcing, Bill Review, Managing Outside Counsel and More THURSDAY, OCTOBER 13, 2016 1pm Eastern | 12pm Central |

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Presenting a live 90-minute webinar with interactive Q&A

Strategies for In-House Counsel to Reduce Litigation Costs: Insourcing, Bill Review, Managing Outside Counsel and More

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURSDAY, OCTOBER 13, 2016

Merril Hirsh, Partner, Troutman Sanders, Washington, D.C. LeeAnn Jones, Partner, Taylor English Duma, Atlanta

  • R. Patrick White, Of Counsel, Gilson Athans, Atlanta
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Strategies for Reducing Costs of Litigation by In-House Counsel

Presented at CLE Webinar Strafford Continuing Education Webinars October 13, 2016 Panelists:

Merril Hirsh, Troutman Sanders LLP LeeAnn Jones, Taylor English Duma LLP

  • R. Patrick White,

Gilson Athans P. C.

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Pre-Dispute Techniques:

Understanding what you are getting, before you need to buy it. Don’t just complaint about the weather …. Do something about it!

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Reducing Litigation Costs by Reducing Litigation

OR

Can you avoid the next fight before it starts?

  • Investigation
  • Negotiation
  • Mediation
  • Project Management/Ombuds

Can you make the fight less costly?

  • Arbitration
  • Whose, Where, What Rules and Why
  • Getting the Resolution You Want

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Plan for the Litigation … Before it Plans for You

Topic A: The Cases You Expect – Minimizing Risk – Early investigation/assessment – Document/data management – Consistency – Efficiency – Predictability

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Early Case Assessment

  • Better and lower cost discovery
  • More disciplined case management
  • Better settlements
  • Better business results

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Topic B: The Cases You Don’t Expect

The Big Case Problem – It’s big – It’s episodic – It isn’t the time people are thinking about efficiency – It’s a jungle out there

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The Professional Problem

  • How much do you know about your dentist?
  • How much of what you know does your management know?

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The Lawyer Problem

  • “I’ll handle your bet the company case for less” – a marketing

pitch that needs work

  • Pessimism as a way to a better life
  • The lack of genuine experience among experienced lawyers
  • The world doesn’t do a good job of incentivizing efficiency

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Problem Solving

  • Find Professionals who will help you solve your problem
  • Become informed consumers.
  • Make your own client informed.
  • Create a culture with outside counsel that cases should be litigated “smartly” and

not just more and that reasoned decisions not to pursue matters will not be punished.

  • Think about dispute resolution – arbitrators, special masters.
  • Do not just defer to outside counsel’s choices – require a budget, require

significant litigation expenses to be approved and justified and constantly revisit the exit strategy and how actions serve to promote it.

  • After cases are resolved, debrief counsel on how the case was handled, what

lessons can be learned, and retain firms for repeat business because they have earned it.

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PRICING FOR VALUE.

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Negotiating Pricing:

Hourly Rates. Fixed Pricing. Contingent Pricing. Volume Pricing. Others.

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Changing fee structures alone will not increase client value.

Client fees = Firm costs + partner profits. No matter how a firm structures its fees, its aggregate fees charged can never be less than the sum of its costs plus profits. To reduce aggregate fees charged, law firms have to cut costs or accept lower profits, not just change fee structures.

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Pros and cons of different fee structures:

Fee Structure Some Key Features Hourly Links price to effort. Relatively easy to implement. Decouples price and outcome. Limited price certainty. Fixed Maximizes price certainty. Links price to perceived client v. Requires significant up front work. Decouples price and effort. Decouples price and outcome. Contingent Links price to outcome. Requires significant up front work. Decouples price and effort. Requires premium pricing for successful outcome.

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WHY IS IT SO HARD TO REDUCE FEES?

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SELECTING COUNSEL FOR VALUE.

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Does case require outside counsel?

Size of case. Precedential value. Availability of internal resources. Familiarity with client vs. broader perspective.

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When choosing among qualified lawyers, consider firm structure, not just fee structure.

Client fees = Firm costs + partner profits. No matter how a firm structures its fees, its aggregate fees charged can never be less than the sum of its costs plus profits. Does your case require the costs that your law firm will pass on to you?

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Large firm Boutique Solo

Firm Models

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Plusses. Quality lawyers across many practices. Large standing labor pools. The “IBM factor.” Minuses. Quality not always uniform. Costs. Conflicts.

Large firm

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Plusses. Quality lawyer in particular practice. Low overhead. Few conflicts. Minuses. Lack of “IBM factor.” Not a “one-stop shop.” Limited internal resources.

Solo

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Plusses. Quality lawyers in select practices. Well-tailored cost structure. Partner-centric work teams. Fewer conflicts. Minuses. Lack of “IBM factor.” Not a “one-stop shop.” No massive standing army.

Boutique

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Bill Review Tools

History In The Insurance Industry

  • 1985 – 1995

Asbestos Bodily Injury Suit Costs Skyrocket

  • 1995 – 2000

Third Party Auditors Retained to Analyze Billing The Defense Bar Attacks Due to the Attorney Client Privilege

  • 2000 –

Insurers Establish Internal Bill Review Departments Supported by Legal Billing Software Bill Review Is Successful In:

  • Ensuring Adherence to Guidelines
  • Avoiding Duplication of Work
  • Reducing Research Time

BUT

  • Reviews Do Not Monitor Whether the Agreed Litigation Strategy is Followed

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Further Reading By Merril Hirsh

  • “Overlitigation is Killing Us: How In-House Counsel Can Get the

Service They Deserve,” CORPORATE COUNSEL (May 2016).

  • “We’ve Just Made Peace, Let’s Address the Next War: Taking Some

Care To Get Dispute Resolution that Works for You,” TROUTMAN SANDERS PRIVATE EQUITY QUARTERLY (Summer 2016)

http://www.troutmansanders.com/we-just-made-peace-lets-address-the-next-war-taking-some-care-to-get-dispute- resolution-that-works-for-you-08-25-2016/ reprinted in LAW 360, September 1, 2016 (copy attached)

  • “Writing Arbitration Clauses to Get the Arbitration You Want,” with

Nicholas Schuchert. Law 360 (August 2016)

https://www.law360.com/articles/826544 (copy attached).

  • “Special Masters: A Different Answer to a Perennial Problem,” ABA

THE JUDGES JOURNAL with James Rhodes and Karl Bayer, v. 55 No. 2 (Spring 2016) at 26

http://www.troutmansanders.com/files/Uploads/Documents/JJ_SP16_v55n02_HirshRhodesBayer.pdf (copy attached).

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  • "Managing Repetitive Litigation: 5 Tips to Improve Outcomes and

Reduce Costs," InsideCounsel, March 7, 2014, LeeAnn Jones and Jay Patton

  • "Taming the Discovery Monster Through Effective Management,"

InsideCounsel, February 21, 2014, LeeAnn Jones and Jay Patton

  • "Litigation: Effective Use of Early Case Assessment," InsideCounsel,

February 7, 2014, Jay Patton and Michele Stumpe

  • "Litigation: 5 Strategies and Tactics to Manage Risk and Reduce

Exposure," InsideCounsel, January 29, 2014, Jay Patton

Further Reading By LeeAnn Jones and Jay Patton

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Thank You

Merril Hirsh Troutman Sanders LLP merril.hirsh@troutmansanders.com LeeAnn Jones Taylor English Duma LLP ljones@taylorenglish.com

  • R. Patrick White

Gilson Athans P. C. pwhite@gilsonathans.com

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