The past year was a defining one for litigation - new trends arose, litigation cases skyrocketed due to COVID-related-losses, virtual courts became an asset and many businesses were forced to reassess their litigation case management strategies.
And yet, while many of us wish to leave 2020 behind, it is important to understand where it left us and where to go on from here.
According to many industry commentators, litigation in 2021 will spike, as two thirds of organisations have delayed their legal agendas due to the pandemic.
When these new cases begin to pile up, it will lead to a year of more legal spending, increased employment litigation cases, and technological transformations. Now, while litigation can feel like a nightmare for most businesses, there are practices that help to reduce the burden, such as effective case management.
This article will take you through six steps that will help you effectively manage your litigation case load during these rapidly evolving times.
Appointing a Dedicated Case Manager
When it comes to litigation, time is of the essence. The faster you can address the problem, the higher the chances are that the process will be smoother. With that said, a critical first step to case management is assigning an internal focal point.
The focal point should be in charge of receiving all initial documentation, storing it, and ensuring that responses to complaints are answered within an appropriate window of time.
The focal point can be an individual from your internal legal team, such as a paralegal or case manager, or an executive assistant. The aim should be to have someone within your company that is up to date with all incoming correspondence that is case related, and that can act as a quick channel of communication.
Creating a Road Map For Your Case
Effective planning can be the difference between a quick, victorious case, and a lengthy and costly litigation process. To ensure that your company has a solid plan, start by carrying out a preliminary case assessment.
The assessment needs to answer important goal-oriented questions that help you define a strategy for each particular case. Questions to consider are:
- What internal resources do you have available for this case?
- Do you have sufficient and qualified staff to handle the processes?
- Will you need to hire external legal counsel?
- What’s the probability of winning the case?
- What’s the cost benefit analysis of settling out of court, versus the risk of losing the case?
After you gather the answers to these questions, your company should create a roadmap. The roadmap can help set timelines and aid with decision making on what litigation route is best to take. Of course, this roadmap should also be flexible and resilient to unprecedented changes.
Assessing Your Budget
Litigation can of course be very expensive, which means that setting up an initial budget is important. Planning expenditures ahead of time can help you reduce extra fees and costs, help you decide which attorneys to hire, and give you a heads up for costs that may present themselves down the road.
It can be difficult to predict how long a litigation case will last, or whether litigation fees will spike, but a budget is a necessary starting point.
To budget effectively, you can start by creating a litigation budget and then tailor it to your individual case. The master budget draft will take into consideration:
- The number of people involved with the case
- The length of time similar cases have taken
- If expert witnesses are required
- Where the case will be heard
- Specific case goals and probabilities
- The costs if choosing to settle
Your case objectives drive the budget so it is important to have these clear to formulate a good initial budget estimate.
Hiring Counsel
For many businesses, increased litigation means greater dependence on external legal counsel.
In fact, according to BTI Consulting, 2021 will see more than a 5% increase in outside counsel spend (the largest increase in a decade).
Therefore, when managing a case, it’s important to properly evaluate legal vendors to ensure that they are effective and suitable for your specific needs.
You should always seek attorneys that have experience with each specific case you are managing. Additionally, when working with legal vendors, you should carefully consider service level agreements (SLAs) and fee structures.
SLAs should be negotiated whenever you begin a new relationship with a legal vendor or when significantly ramping up referrals into an existing relationship. The SLAs should cover specific expectations such as:
- Standard response timelines
- The number of attorneys and/or legal professionals assigned to each case
- Specific requests you seek from your legal counsel
- The skill level of the staff working on your cases
- Key contact points
When it comes to fees, evaluating different payment models can be useful. For example, project fees instead of hourly rates could be more cost-effective, or you could look to negotiate lower fees with existing vendors based on increased casework referrals.
Setting cost control guidelines in advance will also be essential when working with outside legal counsel, such as agreeing which tasks need approval before being performed, and which expenses are and are not liable for reimbursement.
Optimizing Systems and Data Grabbing
Businesses should ensure there are systems in place that can handle piles of litigation documentation.
Now could be a good time to move away from manual litigation processing and embrace digital solutions, such as specialist litigation management software or contract management tools, to save time and resources.
There are various solutions available that can help companies optimize their systems, clean up their databases, and keep better track of important classified documents, such as evidence for trial.
Digital management systems are also crucial for data grabbing as they make data easier to analyse and plug in. Data collection is becoming increasingly more important as litigation case management relies more and more on analytics and statistics to make better informed decisions.
One of the most effective ways that your company can use data during a litigation case is to plug it into predictive analytics systems that can determine the probability of success at trial.
These systems can present your business with important information to help you make better decisions on whether to aim to settle the case or defend at trial.
Trial Preparation
While many cases will be settled prior to going to trial, it’s still crucial for your business to be able to manage a litigation case all the way to the end.
This means plenty of trial preparation and support from your attorneys, in order to work towards a favorable outcome. A vital aspect to keep in mind is that when a case is taken to court, costs are expected to rise significantly.
This happens for a number of reasons, mostly due to the cost of your attorney, and time spent working to prepare witnesses and staff for court.
With the pandemic changing the way that litigation is conducted, it is possible to have to prepare your company for virtual hearings, and remote proceedings. Therefore, you must be ready to adapt to the conditions and have a legal team that is experienced with virtual trials.
More so, your company cannot abandon the responsibility of keeping track of evidence, facts, witnesses and background information.
While the attorney is there to support the case, representatives of your company will be expected to take the stand and testify, which will require prioritizing practicing cross examination, and knowing your case inside out.
Do not be afraid to ask questions to your attorney and to get involved in the details of the case. The more you know the better.
Final Thoughts
While planning litigation processes might seem like a turbulent way to start the year, it might be one of the wisest steps that companies can take right now.
Whether businesses are facing lawsuits, filing lawsuits, or simply looking to optimize their litigation case management systems, these six simple steps can be useful in ensuring that companies are being efficient and are evolving their litigation processes to meet the needs of our current reality.
Written by Gary Markham, founder of AI-enabled predictive analytics legal bill review vendor LSG, who provide enterprise-level litigation and panel counsel management software to enterprises.
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