When litigation breaks out business executives need to be assured that the dispute is being managed as effectively as possible. Lawsuits must be defended. Intellectual property rights must be enforced or they lose their considerable value. Resort to litigation, despite its expense and uncertainty, is sometimes inevitable. While there is no single roadmap for navigating the notoriously unpredictable litigation arena, we have identified certain tools as essential for effective management of intellectual property litigation and other complex cases where significant client assets are at risk. These tools for litigation management foster good attorney-client communications and permit the client to maintain effective control over the litigation process.
- Engagement Letter. We use a written engagement letter to clearly spell out the terms of the attorney-client relationship and our billing procedures. Our clients prefer the clarity and certainty of a well-defined relationship and appreciate our detailed billing statements, which provide a monthly report on activities in each case.
- Budget. A litigation budget is an important tool in the management of the litigation for both counsel and the client. Business clients do not like to be surprised by litigation cost overruns. We provide conservative estimates of the anticipated expense, reminding our clients that the expense of litigation can vary widely depending upon such factors as the approach taken by the adversary, the aggressiveness of the parties and the way the court handles the case. We also update budget estimates where significant developments during the course of litigation indicate that the prior budget may no longer be accurate.
- Company Resources. A company enforcing or defending its intellectual property rights must usually devote substantial resources to the effort, in addition to budgeting funds for attorneys’ fees, expert witnesses and related expenses. Management time is the principal non-monetary resource that a company must divert to litigation. Company executives often possess essential information for handling the case, including industry standards, history of the products, market data, intellectual property assets in dispute, and the particular facts of the controversy that led to litigation. Counsel will likely draw upon management time to do effective fact investigation. In addition, company documents relevant to the litigation may number well into the hundreds of thousands, and company resources will be called upon to produce them in response to both the needs of counsel and discovery requirements in the case.Company employees may also be needed for their expertise in technical, financial and marketing areas to assist counsel in understanding and developing the factual basis for conducting the litigation. In many instances, company employees will be called upon to conduct technical experiments or financial analyses, either as direct evidence of the company’s position, or in support of efforts by outside experts employed for purposes of the litigation.
- Coordinator. The litigation process requires a company coordinator to interact with litigation counsel and to marshal company resources as needed. In-house counsel will usually perform this role for larger companies. For companies without in-house counsel, or where a one or two-person in-house counsel staff is overburdened by general legal affairs, it will be necessary to designate a company manager to handle the coordinator role. In a small company it is not unusual for the vice president of research and development or the vice president for marketing or, indeed, the chief executive officer to play this role.
- Decision Makers. The need for a qualified decision maker with sufficient authority in the company management structure is self-evident. In a small company, of course, the coordinator and the decision maker are often one and the same person. This may not be true in a large company, particularly in intellectual property litigation, where the stakes can have company-wide implications. In-house counsel may make day-to-day decisions on many aspects of litigation strategy, but require approval from top management for fundamental decisions such as assessment of business risk, settlement, appeal and the like.
- Case Evaluation Outline. We consider a case evaluation outline a useful tool for coordinating the efforts of litigation counsel and company management including in-house counsel. At appropriate stages of the litigation, we advise management of the prospects for prevailing, the availability of settlement terms, the relative risk of proceeding with the case and the exposure to damages in the event of an unfavorable outcome. Counsel should update and revise the case evaluation outline as events require.Among our earliest objectives is attaining from our client a full understanding of the business context in which the litigation is proceeding. We can then tailor strategic choices in the litigation to the company’s larger business goals.
- Strategy Sessions. We schedule periodic strategy sessions with company management to assess the posture and progress of the litigation. These meetings permit counsel to confirm or adjust strategy to conform to events in the litigation.
If you have questions about litigation, or would like to discuss litigation management in the context of your business, contact a member of our Litigation Practice Group.