102 litigation strategies tips to improve outcomes and reduce costs - slides

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The Capital Hilton, Washington, DC

September 17-19, 2014

Presented by:


Litigation Strategies: Tips to Improve Outcomes and Reduce Costs


Cost Effective Strategies


Panelists

Laura Leigh Geist is a member of Dentons’ Litigation and Dispute Resolution practice. Her focus is on Commercial Litigation, class action defense, defense of Unfair Competition and Unfair Business Practices. She is active in life insurance and financial services litigation including market conduct and annuity sales practices, Financial Industry Regulatory Authority (FINRA) arbitrations, broker‐dealer disputes and defense of corporate directors and officers. Laura has comprehensive experience in complex insurance coverage and litigation involving life products, environmental, commercial, property and employment claims. Laura’s practice includes the defense of parallel regulatory and governmental actions to civil litigation. Laura has defended numerous national and statewide class actions involving the Truth in Lending Act (TILA), the Unruh Act, the Racketeer Influenced and Corrupt Organizations Act (RICO), premium financing, advertising and marketing, rate making, school accreditation, the Telephone and Consumer Protection Act (TCPA), the Song‐Beverly Credit Card Act and product liability claims. She also handles Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Data Compensation arbitrations.

Laura Danysh is Vice President and Senior Counsel of Litigation – Compliance for Hilton Worldwide. Laura is charged with leading programs relating to specialized compliance with consent decrees and injunctions. She also provides strategic guidance to business partners in managing litigation and resolving disputes. Laura develops and administers Hilton’s enterprise‐wide business partner training and awareness plan. She is responsible for developing and implementing programs on critical compliance topics, including antitrust, ADA, trade secrets, and records management. Additionally, Laura works with Hilton’s Global Policy Committee to develop, implement and communicate company policies.

Susan Farkas is a Senior Corporate Counsel in the Litigation and Government Investigations Department of Bristol‐Myers Squibb, Co., where she oversees commercial litigation, product liability matters, and government investigations. Ms. Farkas is also involved in oversight of e‐discovery practices. Prior to joining Bristol‐Myers Squibb, Co., Ms. Farkas was an associate in the Litigation Department of Mayer Brown LLP and a law clerk for the Honorable Thomas C. Platt of the E.D.N.Y. She learned her BA from Princeton University and JD from Fordham University School of Law.

Moderator

Panelists


Wendy L. Hufford is Deputy General Counsel and Assistant Corporate Secretary of ITT Corporation, a global high‐technology engineering and manufacturing company headquartered in White Plains, NY. In this role, where she has been since April 2010, she is presently responsible for managing the global intellectual property and contracts team and handling global employment, benefits, privacy, compliance and corporate governance matters. She also leads legal operations, including managing all outside counsel and significant vendor relationships. From 2009 through 2010, Wendy was President of Effective Dispute Management, LLC, a consulting firm, specializing in assisting companies in reducing outside counsel spend through process improvements. Wendy was previously Executive Vice President and Chief Litigation Counsel of Cardinal Health from 2006 to 2009. From 1997 through 2006, Wendy was Senior Global Litigation Counsel for GE Consumer Finance based in Stamford, CT. Before working at GE, Ms. Hufford was Vice President and Senior Litigation Counsel at the global investment bank of Credit Suisse First Boston, based in New York City. She was in private practice from 1988 to 1995 at Davis Polk & Wardwell in New York, specializing in litigation. She previously served as a law clerk for the Honorable Robert J. Ward on the U.S District Court of the Southern District Court of New York. Ms. Hufford is a graduate of Colgate University and a graduate of The Yale Law School.

Cliona Levy joined the Legal Department of Marsh & McLennan Companies, Inc. in 2007. Her practice focuses on errors and omissions, broker liability and insurance coverage litigation. She provides counsel and legal support to the casualty, energy and marine practices within Marsh LLC . In addition, she supervises and manages legal staff dedicated to third party discovery response for the firm. Marsh & McLennan Companies, Inc. is a global professional services firm, offering advice and solutions in the areas of risk, strategy and human capital. It is the parent corporation of Marsh LLC, Guy Carpenter & Company LLC, Mercer LLC and Oliver Wyman Group. Previously, Ms. Levy litigated commercial and insurance coverage disputes as an associate with the law firms of Thacher Proffitt & Wood and Sonnenschein, Nath & Rosenthal, LLP. She earned her J.D. in 1998 from the University of Virginia School of Law and her B.A. from Case Western Reserve University, magna cum laude, in 1995. She is admitted to practice in New York and New Jersey.

Panelists

Panelists


Early Case Assessment as a Risk Management Tool



Expense and Burden of Litigation, Particularly E‐Discovery, Has Resulted In Greater Focus on Early Case Assessment and Early Dispute Resolution

• Early Case Assessment (“ECA”) – Early evaluation of the merits and likely outcomes of disputes. This assessment helps in making sound settlement decisions at an early stage, potentially limiting the need for substantial discovery

• Early Dispute Resolution – Consider early negotiations between business leaders or in‐house counsel or a mediation process to resolve a dispute at the earliest possible stage before significant expenses are incurred


E‐Discovery Vendors Offering ECA

Due to the push for early case assessment, many E‐Discovery vendors are now offering ECA services in effort to minimize discovery costs

– As of 2012, at least 29 vendors offered ECA software, some basic and some elaborate

– Vendors can host and remotely deploy such software or companies can self‐host

– Need to invest a little up front to save a lot– Depending on the nature of the dispute and the volume of relevant

materials, ECA can initially be done by inside or outside counsel without utilizing software tools, but may be less accurate



How Top Companies Handle Early Case Assessment

• Implementing ECA program at your companyAn ECA Report should be completed within 60‐90 days

• Goals of ECATo facilitate early and intelligent dispute resolution decisionsAn ECA Report should be updated for any material factual or legal changes to a matter that alters counsel’s assessment of the case



How Top Companies Handle Early Case Assessment (cont.)

• Elements of ECARelevant historical information

Prior disputes between the parties

Preliminary review and assessment of reasonably available facts Review of key documents Discussion with key witnesses Review of product at issue, if relevant




Preliminary assessment of key legal issues

Assessment of the judge, opposing counsel, the jurisdiction, and the local jury pool

On‐line research tools Consult with local counsel

Timeline of deadlines and dates and key stages of the case




Preliminary assessment of potential damages and legal fees Consider insurance coverage/indemnification or contribution Utilize internal finance resources, if possible Obtain rough budget for various stages of matter, through

trial

Preliminary assessment of non‐economic factors Publicity Reputation Precedent




Analysis of potential settlement possibilities Additional business deals Non‐monetary resolution – i.e. future discounts

Assessment of potential alternative dispute resolution Contractual provisions on dispute resolution Relationship between parties and counsel can be leveraged Sometimes corporate acquisitions can change the dynamic Check court procedures for mediation programs

Goal: To create a dispute resolution plan




• Follow up on ECA with Early Dispute Resolution Initiate business discussions between the parties Initiate settlement discussions between inside counselSuggest mediation

• Early Dispute Resolution can save millions of dollars and create business opportunities!



Cost Optimization


External Expense Overview

• Reducing Number of Firms

• Negotiating Fee Arrangements

• Expert Costs/Discovery Costs

• External Environment

Controllable

Volatile

Cost Optimization


Alternative Fee Arrangements

Firm compensated on a structured basis, rather than hourly billing

Predictability for budgeting and more certainty on legal expenditures

Shifts some of the fee risk to firms

Further aligns law firm and company incentives

Cost Optimization


Convergence Programs

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Increased quality of legal advice as relationships mature and progress Firms understand the company’s strategic direction, risk tolerance and best practices

Reduction in total fees due to volume being driven to preferred firms

Partnering with a reduced number of firms to enhance the delivery and quality of legal services

Cost Optimization


Tackling Complex Litigation



Integrate the Business into Developing Litigation Strategy

Set up meetings with the business as soon as a case begins.

Find out the business appetite for risk and define the “win.”

Reduce cycle times – don’t give into the defense instinct to procrastinate.


SettlementPre‐schedule settlement meetings at the outset of

a case.

Learn what motivates your opposition.

Think “outside the box” – non‐monetary aspects of a settlement can be mutually beneficial.




Decision Trees:

What are they?

A tool to help you and your business

partners evaluate the many elements of complex litigation.

Allows you to break complex litigation into small, more

manageable pieces.

A graphical representation of the different factors at play in complex

litigation. Quantifies risk/reward with

assigned values and probabilities for each potential outcome.

Can be used to analyze the various outcomes and hone

in on the best strategy.



Identify the decisions

Identify the strategies/variables, which will be your “chance” or uncontrollable events

Identify the possible outcomes, & consider whether it’s as simple as win or lose, as well as what financial or other ramifications may exist

Estimate the probabilities

Quantify the potential costs of each branch

How do I create a decision tree?



Potential Pitfalls

And Drawbacks

Decision trees are meant to be tools, not written‐in‐stone strategy designers. Here are some things to watch out for.


An example of a decision tree, without valuations


Source: http://www.sfweekly.com, “The 30‐Second Rule, A Decision Tree” by Audrey Fukuman and Andy Wright.


BudgetsHave outside counsel set monthly budgets at the beginning of each year, spanning the entire year.

Know your Company’s Litigation LandscapeHas the company been involved in similar cases

in previous years?Is there any existing data, information, documents that can be leveraged for

the current case?

CommunicationAs in‐house counsel, you are the conduit between the business and outside counsel. Communicate

both ways, often.

Other Factors to Consider



Cost Effective Trial Strategies



• You can try your best case while controlling costs (really!)• Lack of proper planning and management can take your trial

from merely expensive to completely exorbitant. • “Project manage” your trial• Find a logistical commander.

– Not a member of the trial team.– Someone who can take in the whole view, day by day.

Transportation Accommodation Witness schedule Technological Needs

• Start management early and take it slowly.– Cost management starts on day one.

Demonstratives Negotiating with vendors Invoice payment



Mock Juries and Focus Group StudiesMaking sure you get your bang for your buck

• Opportunity to hone and focus arguments, themes and phrasing.

• Not necessarily useful to determine whether or not to try a case.

• Useful to educate business leaders as to the unpredictability of jury trials.

• Consider focus group study if not a full mock jury exercise.• Format can be tailored to your particular dispute and budget.


Mock Juries and Focus Group Studies (con’t)

• Key is to try approximate trial conditions.• In order to be truly useful, both sides need to be strongly represented.• You may need to make assumptions about what evidence can be

discussed, what the jury instructions look like, etc. – Keep your assumptions as neutral as possible.– Opportunity for you to try to understand the strongest aspects and

evidence of the opposition’s case.– You can get valuable information as to which arguments and evidence

are the most important to the jurors in swaying their decision. This information can drive where you are going to spend and where to save.




• Some things are worth the cost.– Experts Not the place to bargain hunt. The right expert can be the difference between winning and losing.

– Sufficient support for your trial lawyers. Don’t have your trial team try to do too much.


Questions?

• Laura Geist, Partner, Dentons• Laura Danysh, Vice President & Senior Counsel, Litigation – Compliance,

Hilton Worldwide• Susan Farkas, Senior Corporate Counsel, Litigation & Government

Investigations, Bristol‐Myers Squibb Co.• Wendy L. Hufford, Vice President, Deputy General Counsel & Assistant

Secretary , ITT Corporation• Cliona A. Levy, Senior Litigation Counsel, Marsh & McLennan Companies

Inc.


www.WIPLEvent.com

The Capital Hilton, Washington, DC

September 17-19, 2014

Presented by:

Documents

102 litigation strategies tips to improve outcomes and reduce costs - slides