March 01, 2017

Co-Venturing Your Next Case?

Karen M. Goodman and Joan M. Swartz

As solo practitioners who regularly try civil cases, we have been approached frequently about “co-venturing” cases. We have entered into several of these relationships with much optimism and hope (just like any relationship). The results have been decidedly mixed. Although, admittedly, we both have experienced good and bad in co-venturing cases with fellow solos and small firm lawyers, this article focuses on some tips on how to make co-venturing work for you.

A recent co-venturing experience helped one author (Karen Goodman) distill some recommendations on how to effectively co-venture (or, alternatively how, to avoid a disaster). Not long ago she began a trial with a younger attorney who had a significant legal malpractice case. He had done a good job of working up the case but had never tried a jury case himself. He brought Karen in to help him do just that—try his case. The two spent a solid month preparing and conducting the trial. Whether because of the age difference, communication styles, or comparable differences in skills, they were able to develop and implement a strategy that resulted in a very large verdict for an extremely happy and deserving client.

In contrast, the other author (Joan M. Swartz) does not undertake larger civil matters without involving a co-venturing lawyer in the matter. This practice has become routine to her, and she finds it both rewarding to work with other lawyers and much preferable in developing trial strategy and avoiding lawyer overload and potential burnout.

Tips for Co-Venturing a Case

We recognize that, because of scalability, it is essential for any sole practitioner with a litigation practice to develop a basic set of guidelines for co-venturing cases. Below are our suggestions to get you started.

1. Critically evaluate the case before agreeing to come on board. Let’s face it: A good case has an appealing client, good facts, and supporting law. But many cases are only “good” in the mind of the client. We all have spent many hours on cases that have significant holes in them. These holes cannot be plugged by even the most skillful trial lawyer. In a co-venturing situation, you should not assume that your colleague who is now seeking your help has carefully scrutinized the case as you would do. You need to be just as vigilant about co-venturing a case as you would if the potential client called your office. A weak case will not get better because of your skills—don’t fool yourself. And be wary of colleagues who play up to your ego. Heed the lesson learned by one of the authors, who allowed a colleague to flatter her trial lawyer’s ego and thus did not examine the underlying case carefully enough to identify difficulties that could not be overcome at trial.

2.  Structure the fee agreement to realistically reflect the skills you are bringing to the table. The financial relationship needs to reflect the respective skills the lawyers are bringing to the table. It is not necessarily a function of just lawyer time. For instance, if you are going to provide staff support for a lengthy trial, the amount of staff time needs to be factored into the division of any fees. The client relationship is certainly valuable, but because so much time necessarily goes into obtaining a successful verdict, the relative skills and productivity of the respective lawyers needs to be considered as well. In an era of reduced civil trials, there is not any question that someone who possesses superior trial skills brings a lot of value to a case that is tried. You need to factor that added value into the division of attorney fees—those skills will certainly make a difference in a case. As clearly as possible, make sure the respective responsibilities of the lawyers are spelled out: Who is responsible for advancing vendors’ costs? Who is responsible for communications with the client? Who is responsible for putting together the court filings? Obviously, an assessment of the relative strengths of each of the lawyers and staff members should be made at the outset of the co-venturing arrangement, as well as a comparison of each other’s schedules and any pressing deadlines in the case.

3. Secure the client’s agreement in writing. The ABA Model Rules of Professional Conduct permit fee splitting outside a law firm so long as the fee relationship among the lawyers is disclosed to the client, the client gives informed consent, and the fee relationship does not increase the cost to the client. Once you undertake this co-venture, you enter into an attorney-client relationship with the client—not just a partnership with the lawyer. Do not just assume that the other lawyer is going to address this issue with the client. We strongly recommend not to agree to co-venturing without first meeting the client first and obtaining the client’s consent to your involvement in the case in a face-to-face meeting—just like all other cases you decide to undertake.

4. Communicate to improve strategic decisions. In making strategic decisions, you have a “partner” to consider. This requires frank discussions, candid input, and quick decision making at times. A partnership is not a dictatorship—and that goes both ways. Talking through the pros and cons of certain strategies can actually improve the case for the client. However, it is very easy to end up with hurt feelings and bruised egos. For example, in a recent trial, the opposing party had failed to depose one of our experts—a forensic accountant. On the eve of trial, opposing counsel suddenly demanded the expert be made available for deposition. My co-venture partner didn’t think that “hurt” us, but I knew our time had to be spent preparing for trial—not defending a deposition. The result—no deposition. We needed all the time the week before trial to simply get ready for trial.

5. Share the workload and the credit. Co-venturing on cases really works when the workload can be shared to best serve the client. You really do not need to “take over” the case when you have a competent lawyer as your co-venture partner. Divide up the case work—including phases of the trial—based on the skills that each lawyer possesses. For example, in a recent co-ventured trial, one lawyer put on witnesses in the plaintiff’s case and cross-examined the experts, while the other lawyer handled the jury instruction conference and all the necessary details with the judge and opposing counsel. This also freed up the other lawyer to work on her closing. One significant added benefit of co-venturing cases is that sharing the workload during trial makes for a better presentation to the jury.

Co-Venturing Cases Can Succeed with Planning and Communication

Experience has taught both of us that co-venturing cases can be a great benefit to clients. Case and co-venture partner selection is critical. Moreover, the lawyers need to share the load and communicate as partners in implementing strategy that effectively presents the client’s case. When asked to co-venture a case, critically examine these issues: (1) the merits of the case; (2) the skills of the co-venturing partner; (3) whether the partner’s communication skills are compatible; and (4) the expectations for the partners’ respective roles.

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