If the Great Recession taught us anything, it is that litigation follows the economic fall. And when it does, those who must use the courts to advance or defend their business interests are doing so with heightened sensitivity to cost, efficiency, and transparency.
The economic downturn exposed numerous weaknesses in the way that lawyers have traditionally handled litigation matters. But because lawyers typically are risk averse, most law firms have been slow to change. And as a result, companies have sought out non-traditional ways to fill the gap, including using alternative legal service providers and relying more heavily on technology.
The global pandemic will similarly create a great disruption in the way lawyers provide legal services.
I’ve been practicing law for more than 30 years. My experience is wide and varied.[1] That experience convinces me that the current litigation model is broken. It is inefficient, unpredictable, and expensive. Lawyers must make dramatic changes to how we represent our clients if we want to remain relevant. Lawyers who are nimble and willing to adapt will prosper as we find more efficient ways to protect our clients. Everyone else will fight for the crumbs.
I intend to be nimble and adaptable.
The post-lockdown economy will require systemic changes to how we handle litigation cases. Companies and their outside counsel must partner together to make litigation more efficient, more predictable, and more cost effective. We will need to think differently about how to litigate and resolve cases. As we jointly focus more on effectively managing litigation, we’ll be met with four imperatives: the Why, What, Who, and How of post-lockdown litigation.
- WHY. Why has the dispute arisen? Is this an unexpected “one-off” case that is unlikely to reoccur? Or does the company have a systemic problem that needs to be corrected? Is this a case with precedential value where decisions made today will impact future business or litigation options? The answers to these questions will help us determine an appropriate course of action. In a “one-off” case, it might make sense to negotiate a quick settlement rather than incur the expense and business disruption of a full-bore fight on the merits. But if a case is likely to reoccur, the company’s long-term business interests might be strengthened by taking a stand and discouraging copycat litigation. And if a case arises from a systemic problem in the company’s business model, competent counsel will help you figure out how to minimize or eliminate that problem going forward.
- WHAT. What is the company’s optimal business result? The business imperative behind the case is at the heart of litigation management. And once we understand that business imperative, we can tailor the representation to best reach that objective with a defined scope of representation, realistic budgets, appropriate venue, alternative strategies to resolution, and risk analysis. Once we understand what the company is trying to achieve, we can appropriately answer the questions of who should be on our team and how we will achieve the company’s objective.
- WHO. Who has the knowledge, skills, and expertise to help the company resolve the dispute efficiently? And who are the critical members of the litigation team? Surprisingly (or perhaps not), you don’t always get what you pay for. Bigger is not necessarily better. Rather than hire a busy, high-priced junk yard dog, companies can benefit by retaining thoughtful, focused attorneys who understand the company’s business and its litigation objectives. We learned after the financial collapse of 2007-08 that “Big Law” firms do not have a monopoly on top tier legal services. Many smaller firms gained market share because they proved they could leverage their knowledge and systems to resolve client disputes efficiently and predictably. And clients reduced their legal spend by using these capable lawyers.
- HOW. How can we most efficiently achieve the company’s objectives? The how is determined by the what. In a COVID-19 world and thereafter, tailoring the strategies, tactics, and tools to the case will be paramount. Successful lawyers will not only have a deep understanding of the law, but also empathy and alacrity in business matters. They will understand how to efficiently leverage technology in all aspects of the case. We may win multimillion dollar verdicts for socially distant clients we virtually never see in human form.
Yes, litigation management has come a long way since the financial crises of a decade ago. And we are not done. Litigation management is the wave of the future, and Davis Miles McGuire Gardner, PLLC is riding the crest of that wave. Call me (480-344-0965) or email me (SGibson@DavisMiles.com) to learn how we can help you manage your litigation effectively, predictably, and efficiently.
[1] My experience includes working in large firms, managing a small firm, and currently serving on my firm’s executive committee. I’ve been a judicial clerk at the Arizona Court of Appeals and a judge pro tem in both the Superior Court and the Court of Appeals. I’ve tried dozens of cases to verdict, served as an expert witness, opined about billing inefficiencies of a “Big Law” firm in a high-profile case, acted as an arbitrator, and taught as an adjunct professor of law at the Sandra Day O’Connor College of Law for the past 12 years.
And if that’s not enough, I’m the only lawyer you’ll ever meet who not only has an LL.M. in Biotechnology and Genomics from Arizona State University, but also is working on a second LL.M. in Litigation Management from Baylor Law. These two programs are the only ones in the world addressing their particular area of emphasis, and I was part of the initial class in Biotechnology and Genomics (degree awarded in 2007) and the second cohort in Litigation Management (with an expected graduation date in 2021).