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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80 LEXPERT MAGAZINE | NOVEMBER/DECEMBER 2018 Sandy Rubin is a writer and strategic consultant. | IN-HOUSE LITIGATION | counsel trying very hard to make sure we understand that it's really not worth it to pursue the Litigation. But if we've got the direction that we want pursue for business reasons, that's what we need to do — while managing to convey to them it's not neces- sarily a blank cheque. "We don't want them to stop paying at- tention to how much the fees are racking up on the file. It becomes a bit of a ten- sion, managing what is appropriate fee in that context." BUSINESS CASE VS LITIGATION Most of the potential spark points be- tween litigators and in-house counsel can be resolved by understanding not just the legal case but also the subtext, says An- drew Faith, a partner at Polley Faith LLP in Toronto. "Where you get push-and-pull is where we push back based on our opinion, and the client has to readjust its objectives. So what we try and do now is make sure we fully understand the business objectives from a public-relations point of view, a business point of view, and even a govern- ment-relations point of view if that applies before we start." Faith says if oen happens that the Liti- gation tactic he believes would be most ef- fective is not the tactic the company wants to use for business or other reasons. He says he sees his role in those cases as outlining the risks of various legal strategies. "It's funny, I just had a discussion with a client where we gave them a green, yellow and red approach — green being very little risk, red being you can't do this because the risk is too high, and yellow being a moder- ate level of risk that may be worth it given the potential outcome." like that. We like to be prepared to stand on principle rather than using a scorched- earth or guns-blazing type of strategy." When it comes to contentious Litiga- tion, or the type that is likely to make news, Jason says Richardson will try to move it from the court to a private arbitration to avoid publicity. at changes the dynamics in a couple of other ways, he says. "e business folks are going to have much stronger feelings about the direc- tion they want the legal proceeding to be taking. Quite oen the issue is more about the ability to conduct business on an ongo- ing basis rather than the dollars at stake in the Litigation. So they may not want to take a certain approach. And I'm taking instructions as well, which I'm passing on to external counsel. I try to make that vis- ible to them so they don't feel like they're hitting some wall and their advice is not being heard." Jason says he feels the biggest flash-point between in-house and outside counsel on Litigation is over fees — but probably not in the way many people think. He says the company may want to push ahead and liti- gate a case that might not would be worth the legal fees given the dollar amount at stake. e company does it because it wants a decision on a principle that will lay the foundation going forward. "We may be willing to litigate a $30,000 dispute where the legal fees would far exceed that. So we'll oen have outside He says he has never refused an in-house file because he disagreed with the strategy the client wanted to take, or felt it stood no chances of success. If it gets to that point, he says, he tries to make those kinds of conversa- tions "educational rather than antagonistic." "It may very well be that the business objective is to settle for a very low sum of money, even though from a litigation objec- tive that seems like a terrible idea. But the business objectives have to be respected." e one thing he won't do, he says, is follow instructions he believes would un- dermine his own credibility. "No one case is more important than your professional reputation. We're not going to be useful to anyone unless we maintain our profes- sional reputation before the courts and other lawyers." He also insists he be the one to decide on "the more granular decisions, how to cross examine a witness, whether to call a wit- ness, how to run a trial, those are decisions that should generally be le to [outside] counsel. And that's where I wouldn't allow business decisions to impede with litiga- tion strategy." Faith says one of the challenges as the ex- ternal litigator is the person the company appoints as the liaison with him may not be the person whose budget is going to be affected by the outcome. "ere can be broken telephone in the organization, so you want to try to make sure you're dealing with the right person." At the end of the day, he admits cases in which the business case trumps a strong Litigation case can cause great pri- vate frustration. "You bite your tongue and say nothing. at's the problem, we're soldiers. We go out there prepared for the fight. We want to have the fight, to engage, to have the trial. To be told the client is settling can be really hard from a personal point of view. "You go home, and imagine what it might have been like had you been able to have the trial. I've had that, where I continually think about the arguments I could have made for the cross examina- tions, even aer the case settles because you prepared and then the leash got pulled back. So it is hard." Hard, and complicated. KENT THOMSON Davies Ward Phillips & Vineberg LLP "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 BECOMES MAKING SURE THEY ARE PROPERLY ADVISED …"