Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
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78 LEXPERT MAGAZINE | NOVEMBER/DECEMBER 2018 | IN-HOUSE LITIGATION | — maybe for business or strategic" versus pure legal reasons, she says. "We have had instances where we've either taken that into account in selecting which firm would work on the file or we've gone out and talk- ed to a few different firms." at doesn't mean Bell wants outside counsel to blindly adopt its initial strategy without poking and prodding at it. "If we were just going to dictate how the file is to be run, we'd just go to a legal-process out- sourcer to execute our commands." Not does it want external litigators who dictate what the strategy must be. "We don't have long relationships with coun- sel who see a case as their own. We really emphasize the collaborative nature," says Schweitzer, who is based in Toronto. "e value-added they bring is an independent assessment of the strategy we're proposing. ey have the perspective of the outside looking in; we have the perspective of a more in-depth understanding of the dis- pute and the relationship behind it." Still, BCE has begun to use one its in- house litigators to argue in court, putting it jointly on the record — and at the counsel table — alongside its outside firm. "We're starting to do it more. Sometimes it just makes sense rather than sitting in the back row passing notes to our external counsel to be sitting at the counsel table, able to ad- dress the court and make submissions." Bell's overall approach demonstrates the push-and-pull between a company's in- house counsel and its external Litigation counsel. While everyone wants to win, a fa- falls on us in-house to weigh the pros and cons. And if internally there is a desire by management to hold off, or take a different approach, the responsibility is on us to help them make the most effective decisions for our company." Schweizer of Bell says when her company decides to settle, if oen cuts out external counsel and conducts the negotiations it- self, using outside litigators only to prepare the deal once one has been reached. "Sometimes outside counsel get bogged down in procedural disputes and wran- gling, or the relationship becomes frac- tured. You see the correspondence going back and forth and see a lot of time is being wasted. It's sometimes easier for us just to pick up the phone and call your counter- part and resolve it directly. It's a lot more effective and efficient." MANAGING COST Litigation is not for the faint or heart of light of pocketbook, and fees and costs are always a potential source of tension be- tween litigators and their in-house clients — most of whom are lawyers but some who are business founders or CEOs. Michelle Awad, a partner in the Halifax office of McInnes Cooper, says sophisti- cated general counsel "plucked from large law firms" generally have a sense of how expensive a big piece of Litigation can be. ey know the other side can open unex- pected paths that draw out the Litigation and make it more expensive, with myriad pre-trial motions or challenges. In-house counsel who don't come from a large corporate firm or management with no previous Litigation exposure can be un- pleasantly surprised by the size of the bills. "at's where you get into the tension. And it's not so much that you're disagreeing with your client on strategy. e clients, in their minds, budgeted a certain amount to get the case to trial. at amount has now been spent and you're not at trial yet, so that's a challenge. "We try to anticipate it as best we can, and I can generally give them a pretty re- liable budget on a smooth trial. But if you give them a budget at the front end that allows for every possible contingent, they think: 'at's crazy.' " Awad, who has acted for banks, insurers, securities dealers and General Motors of vourable court decision is a pyrrhic victory if legal costs decimate the firm's profitabil- ity that year, or leads to bad press. In short, it's complicated. A MATTER OF TRUST Unlike Bell, which has a large in-house department, Canpotex Ltd., a Canadian potash exporting and marketing firm in Saskatoon, has a total of four. Jeff Benjamin, associate general coun- sel, says he hires outside Litigation counsel specifically because his department needs Litigation expertise so, for the most part, he puts a lot of credence in their strategic advice. "We're the client, they're the profes- sionals, and we assume they'll have our best interests at heart." But there has to be wide trust between the two teammates, he says. "It's critical they be on the same page on matters like an overall game plan and reporting in to us. I tell them this is how I'd like them to report, relatively how oen, when a matter needs to come forward, when I feel they can con- nect directly with the business units, and things like that." Failure to communicate as expected or to make it clear what the next steps will be erode that trust, he says. "ere are times we've had external counsel, and chosen to go in a different direction. It wasn't neces- sarily that they were providing inaccurate advice or anything, it just didn't seem like there was a gelling. Sometimes you con- nect, and sometimes you don't." Even where there is a good connection, he says, there are also times where for what- ever reasons the company "doesn't want to throw all the resources into the litigation right now. Even when you have the trust level with outside counsel, ultimately it MELANIE SCHWEIZER Bell Canada Enterprises "THE VALUE-ADDED THEY BRING IS AN INDEPENDENT ASSESSMENT OF THE STRATEGY WE'RE PROPOSING. THEY HAVE THE PERSPECTIVE OF THE OUTSIDE LOOKING IN; WE HAVE THE PERSPECTIVE OF A MORE IN-DEPTH UNDERSTANDING OF THE DISPUTE AND THE RELATIONSHIP BEHIND IT."