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February 15, 2017 Articles

Litigation Management: Results-Oriented Leadership

From understanding your client to employing new technology, learn the strategies to get results.

By James M. Truss

The Section of Litigation’s recent Professional Success Summit featured a panel called “Litigation Management: Results-Oriented Leadership,” which was moderated by Twanda Turner-Hawkins from Allstate Insurance Company. The panelists were Jill Dessalines (Strategic Advice for Successful Lawyers), Joan M. Haratani (Morgan Lewis LLP) Charles E. Harris II (Mayer Brown LLP), and Robert R. Simpson (Shipman & Goodwin LLP). This article compiles some of the more noteworthy insights from and advice dispensed at the summit.

In 2017, leading a litigation department, trial team, or client-service group requires some very different skills and a very different tool kit than those utilized by litigators of earlier eras. Rapid advancements in technology and in the amount of and pace of communications and data-flow have forever changed the way in which lawsuits are managed. Likewise, client expectations have changed in ways that potentially give the (often younger) technologically savvy lawyers an advantage in managing complex litigation. Results-oriented leadership remains key, as it always has been, but the means of achieving great results and the manner of leading toward that end have changed significantly. Sophisticated project management—often facilitated by specialized software—is increasingly becoming an indispensable tool for any effective leader.

To be an effective litigation leader, first understand your client: Learn the corporate culture and dynamics, particularly with respect to litigation risk and budgeting; understand the hierarchies, reporting relationships, and current initiatives; and understand how corporate counsel is motivated and evaluated. In short, become a partner with in-house counsel in the joint representation of your corporate client.

What does your partner likely need from an effective leader? Excellent technical skills and relevant expertise are given. Principally, and unfortunately not always a given, are timely and thorough communication of any material information. Understand your client’s communication style. Do they hate email? Are they talkers or texters? Do they prefer the formal memo or a call followed by a simple written summary? Do they want to be copied on every communication on the case or only strategic or significant matters? Clients also require realistic, thoughtful, and business-centric legal advice and strategy. Given the expense and risk involved in complex litigation, this requires at a minimum that you are able to provide meaningful budgets based on historical data and experience and that you are able to assess risk with more than a wet finger sensing the wind. Tools such as project-management software and decision-tree analyses should be part of any effective litigation leader’s tool kit.

Broadly, project management is the discipline of planning, organizing, motivating, and controlling resources to achieve specific goals. In the context of managing litigation, this process strives for predictability, efficiency, and consistency to manage costs and resources and meet client expectations. The tech-savvy lawyer using project management software effectively can make themselves an invaluable partner for in-house counsel. The first step is to define the project’s scope by understanding the client’s goals, defining your “deliverables,” clearly understanding the desired outcome you are seeking, and developing a communication plan. Next, establish the plan by identifying the various tasks and activities required, selecting the team, and establishing a budget based on data collected from past projects. As project leader, you will then need to manage the team and communications, manage the budget, maintain quality control, continually assess and mitigate risks, and refine the scope as needed. Each step in this process is a collaborative one with the client, and project-management software can help tremendously. Indeed, many clients are demanding that outside counsel use project-management or matter-management software, and some clients even dictate the precise software to be used. Ad hoc litigation project management is no longer sufficient.

Project-management tools use customizable templates that allow you to create a comprehensive map or plan for your litigation project by identifying and designating tasks, timekeepers and billing rates; establishing milestones or inflection points; and generating budgets, tracking features, and alerts. Obviously, someone must take the time to build the project plan, extract the data necessary to predict costs, and prepare a budget. A dedicated project manager may be a good resource with sufficient projects of sufficient size to justify a dedicated person in that role. Although sophisticated project management adds significant time, effort, and expense for the service provider, it is likely to become a necessary cost of doing business for any competitive firm servicing corporate clients.

Another useful tool for the results-oriented leader is decision tree analysis. Although not new in the litigation landscape, thoughtful decision-tree analysis is still underutilized as a client-service tool, particularly considering how often decision-tree analyses and like mechanisms are employed in the business world. In assessing risks of various outcomes, litigators of all experience levels frequently employ something of a “black box” approach by forming a generalized opinion on a given risk or settlement value without reference to anything demonstratively analytical. While a very experienced litigator may have “been there and done that” enough to comfortably form a general opinion on the value of a case, it must surely be somewhat unsettling to many clients paying for this sort of educated guesswork. While decision trees also rely on the subjective judgment and experience of trial counsel, they do so in a more demonstratively analytical way and one that can be more effectively used, adopted, or discounted by the client.

A decision tree is a diagram of possible outcomes in a lawsuit with percentages of likelihood and often monetary values attached to each branch. They are designed to thoughtfully and thoroughly help litigants evaluate risks and benefits of potential outcomes. As for project management, various software products are available to assist in developing and using decision trees. At a minimum, decision trees are useful tools to align you with your client in jointly analyzing potential outcomes since assigning specific percentages of likelihood to each potential outcome removes the ambiguity in such general phrases as “likely to win” or “highly likely to win.”

Employing tools like decision-tree analysis and project management will help you be a better results-oriented leader by empowering you with the tools to understand and manage all aspects of the project, fine-tuned to your client’s expectations, throughout the life of the project. A well-managed and collaborative plan can effectively satisfy the constant client needs of price certainty, transparency, and communication. Clients increasingly include questions about efficiency and project management processes and software in their requests for proposals. It may be time for you to get with the program(s).

James M. Truss is a member at Dykema Cox Smith in San Antonio, Texas.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).