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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LEXPERT MAGAZINE | NOVEMBER/DECEMBER 2018 79 | IN-HOUSE LITIGATION | Canada in cases that make the news, says contentious Litigation brings additional challenges. "e ante is quite a bit higher, so everyone's under more pressure in the high-profile or big-dollar cases. "I'd say the most effective way to deal with that, and in-house counsel agree from what I've found, is we just have to stay in a lot closer contact. It could be that the CEO is coming to the in-house counsel to ask him or her a question, and they just need to look like they're on top of it. Similarly, that person could come straight to me — unexpectedly, because normally the reporting is through in-house counsel — and I need similarly be on top of things. So we need to be a united team, even though one's a client." She says the normal push and pull is also ratcheted up by the exhaustion that accom- panies the added scrutiny of a lawsuit that makes the news. "Obviously you're under pressure and you get fatigued. My reaction isn't to lash out at co-counsel, I don't get upset with them but I sometimes get exhausted by the need to be constantly interacting … and obviously in a big-trial scene you're always in a group setting, so I just need to retreat. Sometimes that means to go for a run to get the cobwebs out, or whatever. at's just that part of the process." TO SETTLE OR NOT TO SETTLE Kent omson, head of the Litigation group at Davies Ward Phillips & Vineberg LLP, says highly contentious cases have their own dynamic. should settle." In fact, he may well urge settlement even when the in-house lawyer doesn't see it that way. What about when the tables are turned, and the company has an excellent chance of prevailing at trial but the in-house counsel wants to settle? "If clients want to settle for whatever reason — business imperatives, reasons of avoiding adverse publicity or not being willing to invest executive time and effort to take a course to trial — my job then be- comes making sure they are properly ad- vised of the merits of the underlying case so they are properly informed and they're making an informed decision so they get the best settlement they can. "It would be the very rare case where I would stand between a client and a settle- ment. It's almost always the reverse. I spend a great deal of time talking clients out of Litigation, convincing them it's not a wise or productive strategy. PRESERVING RELATIONSHIPS Michael Jason, assistant vice-president, le- gal at Richardson International Ltd., Ca- nada's largest agribusinesses, says outside lawyers need to realize that a client, the company, may need to preserve relation- ships with the counter-party aer the \Liti- gation is over. Richardson, based in Winnipeg, has one former litigator in its three-person in- house department, and he generally sits down with his two colleagues to develop a preferred strategy before they meet with outside Litigation counsel for the first time. Richardson does business around the world and litigates in many jurisdictions, he says. And unlike Benjamin at Canpotex and some others, Richardson oen wants its own counsel to determine and execute strategy. "We view ourselves as having a certain amount of expertise so we're looking for advice, but when it comes to the business decisions — how we're going to preserve the relationship, or how we're going to deal with our insurer or the other insurers — we usually want to be driving that." So coming in guns blazing "would usu- ally not be our approach." e dispute may involve a customer, "and we're not inter- ested in getting a reputation with them or other customers of being very hard, litigious types folks. Our company's not e kind of cases that get a company's blood boiling, and may put them at odds with a more conciliatory approach recom- mended by outside Litigation counsel, are those in which the senior officers and direc- tors of a corporation are being accused of dishonest behaviour, misleading investors, or even conspiracy, "cases where the hon- esty and integrity of senior executives have been assailed publicly." "Even when there's nothing to the allega- tions, those are the sorts of cases you as ex- ternal counsel might recognize at the out- set are impossible to settle," says omson. "Complete vindication, unless the plaintiff is prepared to capitulate and walk away, is what the company usually wants. Even when there's nothing to the allegations they don't want to be told the best way out is to make a substantial payment and walk away. Nor should they. "What they want to be told is you are fully willing and able to take the case to trial and defend their interests." omson has acted on more than a few high-stakes court fights, the kind that made headlines or turned ugly. omson says he feels especially in those kinds of cases, a significant part of his responsibility is to "Preach restraint. It's to strongly encourage people to exer- cise caution, to prevent them from mak- ing mistakes in the heat of the moment by marching down paths they shouldn't be on, making sure people take a deep breath and proceed very carefully. Basically, exercising sound professional judgment." ere are a lot of cases that fall between the dry technical and the reputational types, omson says, and for those, "my view is the great majority can settle and MICHELLE AWAD McInnes Cooper "I SOMETIMES GET EXHAUSTED BY THE NEED TO BE CONSTANTLY INTERACTING … AND OBVIOUSLY IN A BIG-TRIAL SCENE YOU'RE ALWAYS IN A GROUP SETTING, SO I JUST NEED TO RETREAT. SOMETIMES THAT MEANS TO GO FOR A RUN TO GET THE COBWEBS OUT, OR WHATEVER. THAT'S JUST THAT PART OF THE PROCESS."