Ten Things – What Should In-House Counsel Do During Trial?

Trials are rare.  Like wins for the Dallas Cowboys or finding gold on Oak Island (seriously, guys give it up!).  If you have been practicing law long enough you know that most commercial litigation never goes to trial (at least here in the USA). Disputes typically get settled either through mediation or on the eve of trial.  Unfortunately, everyone spends a lot of money and time before that eventuality occurs.  This is why it is important for in-house lawyers to properly explain the litigation process to the business, especially to senior management.[1]  If they know what’s likely to happen, odds are good you won’t get yelled at (well, not yelled at as much). As I have noted before – litigation is a fool’s game.  But, it is a game that every in-house lawyer will likely have to play at least once.  And, despite the cost, the risk, the smell, and the general messiness of it all, every once in a while, cases go to trial.

Pre-Coronavirus, this meant everyone heading down to the courthouse for a good old-fashioned battle royal (that’s American for “melee”). In-house lawyers tagged along, even though they really didn’t have much to do in terms of actually putting on/defending the case.  Still, they do have a role.  A very important one. And when the “Great Pandemic” passes, and the courts reopen, trials will pick back up and in-house lawyers everywhere will need to be prepared in case their company is actually part of an honest to goodness trial.  If you have never been part of the process before, it can be intimidating and a bit scary – and you will likely be unsure just what the hell you should be doing other than staying out of the way.  I have been part of many trials as an in-house lawyer and this edition of “Ten Things” will set out some of the things in-house lawyers should be doing at trial:[2]

1.  Don’t go to trial.  I know this sounds a little snarky but in all seriousness one of the most important jobs of in-house counsel is to keep their company out of going to trial if at all possible.  Sometimes it is unavoidable but if 90% of litigation settles that tells you that your case must be something truly special to end up in the 10% that go to trial.  Given the cost, the distraction, the risks (e.g., juries, judges, and – shock – unscrupulous lawyers on the other side), look hard for ways to resolve disputes before they reach the point of no return.  Find ways to get talking quickly.  Be open to early mediation (and no, it is not a sign of weakness to propose early mediation) or offering to get the CEOs together to see if they can work it out.  Sometimes, in-house lawyers can pick up the phone and work it out with their counterparts at the other company.   But, if you simply let the process – and your outside counsel – take over completely, you will either find yourself in trial or part of the ultimate “fail” – settling on the eve of trial (i.e., when you have incurred maximum costs and pain and now settle for something that you could have negotiated for 24 months ago).  Don’t let that happen to you. But, if that all fails and you find yourself picking a jury, then in-house lawyers have an important role to play.

2.  Show up.  If your company is in trial, someone from the in-house team needs to be there. Every day and working behind the scenes with the trial team (which will mean early mornings, late nights, and weekends).  You cannot “outsource” your responsibility to participate in the trial process.  It is your job and your duty to be there.  Depending on the stakes (or the number of lawyers in the department) who goes can vary, i.e., smaller cases do not require the attendance of the general counsel but when the risks go way up, that’s when the general counsel herself needs to find a seat in the courtroom every day.  You do not want the CEO asking you why you are not at the trial, especially when there are big dollars or big risk on the line. 

3.  Cheerleader.  Sounds simple but it’s not.  Getting a case ready for trial is a monumental undertaking.  Before I went in-house, I tried cases.  Jury trials, bench trials, arbitrations, whatever.   I loved being in the courtroom.  But I hated the soul-sucking process that was involved in preparing for the trial.  It’s enough to drive you to make a career path change (like I did).  So, count on your trial team being exhausted and stressed.  Likewise, the business colleagues of yours who will have to testify will be scared, tired, and unhappy to be part of the process.  They have far better things to do than wait around for their turn to get grilled on cross-examination. To add to the fun, the senior management and board of directors will be cranky – upset about the cost and the risk of the process (though, hopefully, you have been keeping them up-to-date with even-handed briefings about the case, the costs, and the risks).  Odds are good that where senior management was once the group pounding their chests the hardest about seeing the matter through to trial, they are now asking you every 30 minutes why the case hasn’t settled.  All of these interests, concerns, and agendas need someone like you to cheer them up and calm them down.  No matter how you may personally feel about the case and the odds (I usually felt like I needed to throw-up ten times a day), you need to break out the pom-poms and be positive and reassuring at all times.  Take time to thank the trial team, your team, and the witnesses for their sacrifice and efforts on behalf of the company (a little thanks goes a long way). For the business, it means being patient and taking time to explain what’s happening, why it’s important, and how whoever you are talking to can help – even if it is to stop sending notes to the trial team during the trial. 

4. Face of company.  A corporation cannot “show up” at trial.  Someone needs to be the face of the company, i.e., someone to stand in so the judge and jury have a live person to relate too. Sometimes, depending on the size of the case, this may be a senior officer of the company.  But, more frequently, it’s one of the in-house legal team.  Being the face of the company is not an easy job – you have to be humble, sincere, likable, and able to keep a poker-face through pretty much whatever comes out of the mouths of the lawyers and witnesses, which can be difficult (like keeping-a-straight-face-at-a-Rudy-Giuliani-press-conference difficult). Your trial counsel and jury consultant (see below) will help you in this role but be prepared to get a lot of “advice” on how to act, how to dress, how to cut your hair, etc. Clearly, image matters, and in addition to your image, be on guard to protect the image of the company and to project an image of the company that is both truthful yet tailored to the situation.  For example, if the optics of trial require that the company not look like Goliath vs. tiny David, be sure to limit the number of company lawyers and employees visible to the jury.  It does not take that clever of a lawyer to remark in front of the jury that it is so nice to see so many of Mega Corp’s legal team present – all 50 of them!  That may not be the image you want to project.[3] 

5.  Gopher.  There are hundreds and hundreds of tasks that must be done when a case goes to trial.  One of the easiest and most effective ways in-house counsel can help is to simply raise their hand and take care of whatever needs to be taken care of without complaint.  I was the general counsel and paying millions of dollars in legal fees in one case that went to trial, but I was there in the “war room” (actually, an entire floor of a hotel) making copies, getting coffee, figuring out the food delivery, and whatever else needed doing.  Someone needs to ensure the company’s witnesses are confirmed and know the details of where and when to show up.  In short, no job is too big or too small when you’re at trial.  And nothing makes you feel like part of the team like digging in and helping out.

6.  Liaison.  Litigation is not something most business people have much experience with.  You could say the same of many in-house lawyers (or outside counsel for that matter), especially when it comes to actual trials. One key role of in-house lawyers then is to act as a liaison between the outside counsel team and the business.  This typically plays out as:

  • The person who provides updates about the trial to senior management.  This is usually in the form of a daily debrief at a set time every evening or morning (and ad hoc if the issues are urgent enough).  Be prepared to give a little “Trial 101” at times as you will likely need to explain what is going on and put it in context for the “civilians.”
  • Someone to help keep company witnesses calm before they have to testify, answer their questions, ensure they are comfortable and feel “ready” to go.
  • Depending on your role in the department, a liaison between the trial team and the general counsel or head of litigation.
  • Point person for other parts of the business that need to be involved with the trial, e.g., the corporate communications team, investor relations, IT, etc.  Typically, a trial involves more than just the legal department and they need to know who to go to with questions and requests.
  • Work with and assist the jury consultant as needed (if your case is in front of a jury and significant money or risk is on the line, jury research is critical).[4]
  • Act as a buffer between senior management and the board of directors and your trial team.  This is probably the most painful role of all as apparently anyone who went to MBA school learned about how to try cases and is willing to share their extensive knowledge and helpful suggestions hourly.

7.  Protector of secrets.  One thing many people forget about the U.S. legal system is that it is incredibly open and built on access by the public (and reporters).  Not only is our discovery process intrusive and baffling to the business, but the ability to keep unfortunate, cringe-inducing, confidential, or otherwise irrelevant documents and emails out of the public eye is limited; by rule and by the whims of the judge – something senior management will have no idea about unless you tell them (… please tell them).  On the other hand, no one knows the company’s secrets and sensitivities like its in-house lawyers – certainly more so than outside counsel no matter good they are.  Your job is to review every exhibit that your side or the other side has identified for use at trial to determine if there are any issues around confidentiality (e.g., a trade secret) or other sensitivity (e.g., embarrassing or potentially harmful to some business relationship outside of the dispute).  Is it a big job?  Yes, it is.  But it is critical in terms of protecting the overall interests of the company vs. the specific interests at play at trial.  If you identify problematic documents, point those out immediately to the trial team so they can take steps to try to protect the confidentiality or keep the document out of the trial (but, just know that both are typically tall tasks).  Moreover, if you know that problematic or embarrassing documents may be revealed during trial, inform the general counsel, corporate communications, senior management ( plus the board of directors if appropriate), and the author so they can prepare themselves for any fallout.  You don’t want them to learn about a bombshell email for the first time by seeing it on page one of the newspaper.

8.  Review briefs/motions.  There are many motions (and responses to motions) filed during trial, including pre-trial and post-trial.  Your job as in-house counsel is to read everything your trial team proposes to file on behalf of the company and – if you disagree with something – to speak up. As I have written before, your outside counsel cannot possibly have the same knowledge of the company that you have as in-house counsel.  Bring that knowledge to bear to help the trial team draft their motions and responses.  Likewise, if something you read is not correct – factually – speak up.  You do not want anything filed with the court that is not accurate. Or, if something just strikes you as wrong, not-compelling, or missing the point, let your trial team know as soon as possible.  They should welcome your input.  And, even if not, it’s your job to give it.  You can and should be respectful about it (just as they should be respectful if they do not agree with you), but that is how the best work product comes about – it is tested and tested and honed and honed.  Don’t be intimidated by your team – they work for you!

9.  Settlement team.  Even if not all cases settle before trial, many settle during trial.  The tension here is that if you divert your trial team to focus on settlement discussions you are naturally telling them a) you don’t believe in the case and want to stop, and b) they need to start thinking about all the reasons your case sucks so they can figure out where the right settlement should land.  Neither is conducive to ensuring your trial team is 100% focused on taking names and kicking ass in the courtroom.  If the opportunity to settle the case during trial arises, in-house counsel (preferably one not involved in all of the day to day actions discussed above) should consider forming a “settlement team,” a group separate from the trial team.  This group will be responsible for trying to settle the case, ensuring that the trial team is not distracted and is otherwise going full bore until the settlement team tells them to stop. 

10.  General observer.  As I look back through the above, there are a lot of specific tasks for in-house lawyers during trial.  But, as with many things, the most important task is to pull back from the incredible frenzy that swirls all around you while a trial is proceeding and take a “big picture” look at what is going on.  This is literally the definition of seeing the forest for the trees, i.e., stepping away from the specific details of the task and trying to see how everything fits together.  In terms of a trial, here are some things to look out for:

  • How is the trial proceeding generally?  Do you feel good about it? Does the team feel good about it?
  • How are the judge and the jury reacting to each side’s witnesses, evidence, overall presentations?
  • Has anything unexpected come up – testimony, a document, anything that was not factored into how you viewed the case coming into trial?
  • How are the judge and jury responding to your lawyers? To the other side’s lawyers?
  • How are the company’s witnesses holding up?  Does anyone need special attention?
  • How is the team holding up overall?
  • Is there an opportunity to strike a settlement vs. letting the case go to the jury?  Should you settle? 

Typically, your outside counsel will be doing the same thing but an extra pair of eyes keeping a high-level vigil over the overall proceedings can spot things that they miss.  This can be an invaluable service depending on what you see.

*****

As in-house counsel, you may think your role at trial is limited to sitting on a bench in the back each morning, having a snack, watching the proceedings unfold, and then heading home for dinner with the spouse and kids at 5:00 p.m.  It’s not.  Plan on the same long days as your lawyers.  Not only are there tasks you should take up automatically (as discussed above) there may be other tasks that your trial counsel ask you to help with.  Be ready and willing to pitch in.  Fortunately, the list above likely applies to litigation in most countries, not just the USA.  Also, if the stakes are big enough, senior management will be making appearances at the trial prep war room and potentially in the courtroom, either as a witness or as an observer.  The last thing you want them to ask themselves is “where are you?”  While trials are rare, they do happen, and when they do in-house counsel has a vital role to play throughout the entire process.  It will be exciting, exhausting, and exasperating.  So, buckle up – it’s going to be a bumpy ride!

Sterling Miller

November 30, 2020 

Ten Things You Need to Know as In-House Counsel – Practical Advice and Successful Strategies and Ten (More) Things You Need to Know as In-House Counsel – Practical Advice and Successful Strategies Volume 2 are on sale today (November 30) at 40% off on the ABA website.  As the ABA says, “All in-house lawyers need to own these books!” The ABA is smart. 

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I have published two other books which make awesome holiday gifts: The Evolution of Professional Football, and The Slow-Cooker Savant.  I am also available for speaking engagements, coaching, training, and consulting.

Connect with me on Twitter @10ThingsLegal and LinkedIn where I post articles and stories of interest to in-house counsel frequently.  

“Ten Things” is not legal advice nor legal opinion and represents my views only.  It is intended to provide practical tips and references to the busy in-house practitioner and other readers.  If you have questions or comments, please contact me at sterling.miller@sbcglobal.net.

[1] See, Ten Things – Explaining Litigation to the CEO and Board of Directors.

[2] I do need to thank long-time reader Barton Wachsteter for suggesting the topic!

[3] Though, because trials are rare, it is not hard to see why lawyers want to be present at such an event.  Part of your job may be creating a schedule for when people can attend.

[4] Mock trials and jury research will likely be a blog post in 2021.

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