May 19, 2016 Articles

Trying the High-Risk Case for a Corporate Energy Client

Recommendations for both inside and outside counsel.

By Stephen M. Fernelius – May 19, 2016

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.

1. Partner with in-house counsel and leverage in-house counsel’s expertise and relationships with key client decision makers.
It is critical for outside counsel to have access to the client’s employees and the information those individuals possess. Many times the last thing these individuals want is to get involved in a lawsuit. For better or worse, though, these are the same individuals who may determine the outcome of a trial. In-house counsel’s influence is essential to achieving employee access and to building trust within a corporate client. The case may also attract a great deal of scrutiny from both inside and outside the company. It may be the most significant matter ever handled by inside counsel. True teamwork exemplified by frequent, candid communication between the inside and outside lawyer is a must. It minimizes surprises and helps large corporate clients deliver a uniform message inside and outside the courtroom.

2. Keep in-house counsel well informed.
Particularly in a high risk case, in-house counsel can expect to be asked often by company management about recent developments and litigation strategy. By consistently providing information and knowledge about the litigation, outside counsel can ensure that their inside counterpart is prepared to answer questions in a confident and commanding way. Keeping in-house counsel well informed also helps avoid surprises and prepare businesspeople for possible outcomes. You don’t want the first time the businessperson finds out that his oil lease expired to be after he receives a judgment. Updating in-house counsel on risks and possible outcomes as facts develop helps avoid that type of surprise. Even if outside counsel has handled numerous similar disputes in the past, it is also imperative to remember that inside counsel’s opinions are important in fostering a positive relationship and in obtaining a good result.

3. Develop a clear understanding of what your dispute is—and what it is not.

A thorough investigation of the facts is critical to assessing the strengths and weaknesses of the case. Those closest to the dispute, including employees of your client, may lack sufficient perspective to fully understand the situation or may be reluctant to admit mistakes. Put another way, sometimes we believe what we want to believe. In the context of a high-stakes trial, you and your client have to know what you can prove. Without that knowledge, your credibility with a jury (both individually and as a representative of your client) will suffer. Equally important, your and your client’s overall risk evaluation of the case will suffer too.

4. Know and anticipate how evidence from outside the discovery process will be used.
Savvy opposing counsel will use things such as your client’s website and any social media of your employee witnesses to discredit them. Know more than your opposition does in this key area. From the outset, advise your client and key witnesses not to comment about the litigation without approval from the legal team. Social media posts are a gold mine for witness research. For example, on numerous occasions, I have seen the consequences of a refinery employee speculating about the cause of an incident on social media, or an oil field worker posting pictures of dangerous field operations before an incident. Opposing counsel will find those posts and use them aggressively. Spend time trying to find information and material that you would use if you were your opponent.

5. Spend considerable time and effort in preparing company witnesses and representatives.
Have a plan to prepare client witnesses. It is often best first to hold a short, introductory session. Other sessions can be scheduled later to address substantive issues. Make sure that you have a command of pertinent documents to review with the witnesses. Demonstrate at all times your respect for the employee’s time, but don’t let the witness talk you into underpreparing because the witness is busy. Resist the thought that some witnesses are “not as important.” One bad deposition or trial witness can significantly damage a case. The employee may grouse about the time spent in preparation but will be thankful once it’s done. You should aggressively “mock” cross-examine the witness in preparation. Here is what you want your witness to say when the deposition is over: “You were harder on me in preparation than opposing counsel was in the actual examination.”

6. Practice makes “more perfect”—use focus groups to test case themes and trial story, and deliver your opening statement to those who know nothing about your case.
You may think that you know how a case will turn out. Even if you do not realize it, that prediction may be based on or heavily influenced by how you would decide a case if you were a juror. You and your client should spend time researching and understanding what the actual jurors will think. Focus exercises, i.e., mock trials, are incredibly valuable in this regard. Even if your intuition proves correct, there may still be important adjustments that can be made to increase the likelihood of success. A compelling trial story must be told no matter the type of case.

7. Prepare to handle the broad (not skinny) case—a trial only over “relevant” issues is unlikely.
Plan responses (and evidence, as necessary) to arguments that are not central to the dispute but may nevertheless be damaging. Also, be ready to point out why the opposing party is wasting the court’s and jury’s time on them. To do so, you must fully understand those arguments. If you do not, you will struggle to have your jury focus on what is important. For example, in cases involving an incident with multiple deaths and injuries, plaintiffs’ counsel are fond of asserting that the “safety culture” of the corporate energy defendant makes relevant its other incidents, injuries, and regulatory citations or penalties. If the trial judge accepts this approach, it is imperative to be ready to defend effectively against it.

8. Arrange, well ahead of time, all logistics—courtroom technology, hotel rooms, conference rooms, staffing, wi-fi, etc.
The devil is in the details. Not getting the logistics right can cause undue stress at the wrong time and undermine your client’s confidence in your team. Put a trusted person in charge of these technical items, but not someone with a prominent role at trial. The trial lawyers should be getting ready to try the case, not figuring out where to run wires.

9. Use a jury questionnaire and a team to assist during voir dire.
It is critical to get rid of (for cause or by peremptory strike) any juror that may be bad for your client’s case. The only way to do that is to know your potential jurors. My experience trying cases for large oil and petrochemical facilities underscores the need to identify the potential jurors who may possess inherent biases against energy companies, whether from personal experience or generic complaints about gas prices resulting in unfair profits. More information is always better, but to use that information, you must have the resources to review, analyze, and prioritize everything learned during voir dire, often in a very short amount of time. Focus on finding the jurors you do not want, not preaching to the jurors you want to keep.

10. Plan and put on your case to assist the jurors in answering the jury charge the way you want them to.
Make sure that you present all evidence necessary for the jury to find in favor of your client. Avoid calling witnesses who do not directly help in this regard or who unnecessarily repeat others’ testimony. Juries truly appreciate lawyers who don’t waste their time. Ultimately, you will want to “argue” the charge in final argument. Review the key definitions and questions, and explain how the evidence supports the answers that you suggest the jury should provide. If you give the jurors what they need efficiently throughout trial, they will be more apt to agree with your argument.

As all trial lawyers know, victory can never be guaranteed. But we can absolutely affect our clients’ chances at success. These guidelines increase your chance of winning—whether for one client or many.

Keywords: energy litigation, oil and gas, corporate counsel, in-house counsel, outside counsel

Stephen M. Fernelius is a member of Fernelius Alvarez Simon PLLC in Houston, Texas.

Copyright © 2016, 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).