Balancing the desire to defer certain litigation costs early on against the potential harm to future defenses is not a matter that should be delegated to inexperienced – albeit less expensive – attorneys. Robert N. Kelly, head of the trial practice group at Jackson & Campbell, says not only are there a number of essential and thorny considerations to be addressed at this critical juncture of a case, but it is equally important to be able to articulate them to company management.
Kelly will be one of the panelists on the complimentary Jan. 26, 2011, LexisNexis Web event titled “Early Case Assessment & Resolution Webinar for In-House Counsel & Outside Law Firms.” To register for the free program, go to http://www.eventsvc.com/litigation/.
Here is a preview to some of the insights he will share.
LN: What’s at the top of your checklist for early case assessment?
RK: In my view the single most important factor is an early, comprehensive case evaluation by a senior attorney. This is not something than can easily be delegated and it sometimes is a little bit difficult to make those responsible for paying the legal bills understand why it is wise to contribute a certain amount of extra money up-front.
LN: Isn’t some of this work something an associate could handle?
RK: The senior lawyer, the probable lead trial counsel, is the one that needs to do much of this initial work, even if the routine work can be delegated to a junior lawyer afterwards. From the client’s perspective, it is the best way to leverage the experience that those senior litigators have in recognizing danger signs. What I am referring to is using the senior litigator’s experience to identify – almost through a legal triage system – the cases and issues that can blow up. It’s important to focus one’s resources on those cases with the potential to cause serious problems. Sure, it’s a bit of a calculated risk, but with good input from senior litigators, the odds are that you can distinguish the problem cases from the more routine ones.
LN: How do you make sure you have reliable data to conduct that kind of analysis?
RK: I will go back to my original point. You need to have the experienced litigators take that early look at each case. The data that they generate may not be infallible, but it will be far better on average than a superficial review by a junior attorney. I’ve found that as long as this approach is carefully explained to management and supported by a pragmatic analysis, management usually goes along, sometimes with some tinkering, but with the essentials intact. You’ve got to be able to clearly and convincingly articulate to your own client, or the insurance company paying the client’s legal bills, why it’s important to invest a little bit more up front. You need to say more than just “trust me,” you need to explain what the protocol is that you’re using, and support it with examples to make it clear to them that it is a cost-effective way to approach the legal triage process.
LN: What are the kinds of things the experienced lawyer brings to the process?
RK: It’s often hard to distinguish a potential problem case, it’s not always obvious. It requires experience with the specific legal issues, with opposing counsel, with the judge, with the jury pool. These are elements that experience enables you to sift through and come to some sort of reasoned judgment distinguishing the problem cases from the routine cases.
LN: Besides senior attorneys, what else drives the higher up front costs?
RK: There are other things besides the triage process I’ve described that can legitimately increase up-front costs. You may want to invest in filing a motion to dismiss, even if its chances of success are slim, because this can help educate the judge on the issues, or send a signal to the other side that this is going to be a hard-fought battle. Taking early depositions is another up-front cost that is sometimes justified. There are all sorts of strategic and tactical considerations that go into these sorts of decisions. Put another way, there can be significant litigation advantages from doing things in a punctuated timeframe, rather than in a nice, orderly steady-state process. Sometimes there is a benefit to keeping the other side off balance, sometimes it helps to get critical information before the other side has time to fully prepare witnesses or develop a strategy of its own. Again, these costs can be justified in certain cases, but not all cases, and when they are justified, the reason, complete with some sense of the cost-benefit analysis, needs to be clearly articulated to the client.
Robert N. Kelly joined Jackson & Campbell from the Department of Justice in 1988, and has been a Director with the firm since 1992. He is the present Chair of the Firm’s General Litigation Practice Group. Mr. Kelly’s practice has been focused on the representation of insurers in coverage litigation, and on the representation of their insureds where coverage has not been at issue. In both coverage litigation and direct defense, he has concentrated on the defense of clients in litigation arising from environmental, toxic tort, construction defect, professional services (particularly Architects and Engineers Professional Liability), pharmaceutical drug injury, and intellectual property claims. His litigation practice also includes personal injury defense, and general commercial litigation.