Sometimes you have a case that requires special attention from the start.
Canadian newspaper National Post covered this topic from a session at the Association of Corporate Counsel annual meeting held this week in Washington DC.
Such a case can start like this:
… a filing from a regulator, a competitor, an inventor or even a lone consumer who later becomes lead plaintiff for a class. All turn out to have this much in common: If successful, they can lead to the loss of the entire company through financial ruin or a complete destruction of goodwill.
Some of the other signs to look for are:
… things that don’t track logically, such as demands for an absurd settlement amount or a plaintiff’s refusal to even discuss settlement, or some indication their motive is to destroy the company. Pleadings that assert novel theories of law or cases based on very recent changes in the law are also a danger sign, as well as those seeking injunctive relief that would provide the person filing the suit with competitive advantage.
The panel stressed the importance of getting support for the defense from the “highest levels of management.”
The article goes on to discuss important matters involving PR, retention of experts, HR considerations regarding company witnesses and insurance.
While support may involve significant spending, I was somewhat troubled by the notion that a GC might need “liberal, if not unfettered” authorization for spending on the defense.
In my experience, two keys to successful litigation are the selection of the team (both inside resources and outside counsel), and how the team works together. I have seen cases that proceeded with a virtual blank check start to stagger under the weight of over-staffing later in the proceedings. The notion of “leaving no stone unturned” can result in files full of 25-page memos on obscure areas of the law (the 18th affirmative defense or discovery motions) that are barely read and rarely used. Meanwhile, the plaintiff’s attorney has developed one or two main facts or themes that will defeat a motion to dismiss and resonate with a jury.
I don’t think it is a coincidence that many successful plaintiff lawyers are at smaller firms and tend to staff their cases much more leanly than their corporate defendant counterparts. Only so many lawyers can take essential depositions, only one can make an opening argument.
You can’t just out-spend the opposition and win. It has to be smart spending coupled with strategic thinking.
Someday a GC will select a smaller litigation firm to battle a name plaintiff attorney in a key case. That will be an interesting battle to watch.
And, if successful, that GC should get an “Uncommon Valor” award at the next annual meeting of the Association of Corporate Counsel.
On Monday: some ideas on how to avoid Bet-the-Company Litigation in the first place.