Wisconsin Business and Commercial Litigation

Recently, I was reminded of the reasons that outside litigation counsel are an important addition to the legal services provided for an organization.  Like in-house counsel become adept at the many facets of contract and transactional practice, litigators, by virtue of experience, repetition, and volume, learn to identify potential problems in the litigation process and avoid them.  This is one reason, among others, that I believe litigation counsel should be the only contact with the opposing party until the litigation is completely concluded.

Even the negotiation of settlements can create problems for those who do not hammer out such agreements on a recurring basis.  In-house counsel (for those you who are reading this, I except you from this rank speculation) can forget that plaintiffs’ lawyers, unless you include in the original discussion something as simple as confidentiality, may demand additional compensation for adding a confidentiality provision later on.  Neglecting to negotiate this in the originally-agreed upon settlement package can needlessly increase the cost of the settlement.

You shouldn’t hire someone that you don’t trust to handle litigation.  Litigators expect, and we desire, that the client will have the final say on all matters important to a lawsuit, and particularly settlement terms.  But we also expect, and can serve you best, if you leave the communication with opposing parties entirely to us.

Dealing with outside litigation counsel can be frustrating.  And believe me, we outside litigation counsel know that.  To point the finger in exactly the opposite direction, it can be equally frustrating dealing with the corporate counsel or litigation manager assigned to the matter.  The additional layer of schedules and reporting, over and above that imposed by the court, can cause friction even in the best of relationships.  To top it off, all clients’ timing requirements and formats differ.

There are a number of things that have helped make it easier for me to make the corporate counsel, litigation or risk manager, or other company contact not only stay in control, but also appear that way their board or boss, which makes everyone happier.

First, provide to us a copy of the company reporting requirements with the first contact regarding the litigation, even if we already have a copy.  Remind us that there is an initial report and budget due within 30 days – if nothing else, it will prod us to calendar future reporting just as we do the court’s scheduling order. 

Also helpful, but less necessary, are litigation reporting systems, like Serengeti or TyMetrix, employed by many organizations.  Systems like this make it relatively easy to format the information in a way that’s helpful to you, and often provide the third thing that helps us sometimes-forgetful litigation counsel to report timely:  email reminders or some other form of notification.

We are often caught up in defending or prosecuting your interests, and our reporting will therefore organically occur based on the ebb and flow of the matter, rather than on the arbitrary 30-, 60-, or 90- day intervals you desire.  It’s not that we’re not happy to provide the information, it’s just that nothing in the substantive or procedural events of the case demands that sort of reaction on regularly-scheduled intervals.  Reminders help – and also help us to look at the requirements provided, and have the remainder of the due dates calendared.