Early in my career, a tenured in-house litigator shared a simple, yet important, fact that continues to influence my practice. He told me that most lawyers get to represent many clients. In-house counsel represent only one. The import of this lesson was (and still is) clear: In-house lawyers may get to make only one mistake. This reality has, I believe, led to an understandable desire to avoid risk. Simply put, you can’t lose what you don’t put on the table.
Avoiding risk can certainly prolong the career of a lawyer with one client, but it also seems to create a natural bias toward settlement, to avoid the big loss that garners unfavorable attention from peers and superiors. However, some lawsuits still result in a trial.
Whatever the reason, if an energy company must try a high-risk case, a great deal of experience, planning, and coordination must be brought to bear to maximize the likelihood of a successful outcome. I offer the following recommendations to both inside and outside corporate counsel faced with such a challenge.