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Preparing for Battle: Managing the Mega-Case Litigation Team

By Steven D. McCormick

The perfect litigation team is a small, tight group—a partner, one or two associates, some paralegal support. Everyone communicates with one another and knows where the case is going, making it easy for everyone to pull in the same direction. But often, and increasingly, the scope and complexity of lawsuits dictate the need for a vastly larger litigation team. At any given time, hundreds of cases are being prepared or tried that require a dozen or two lawyers—and sometimes multiple law firms—on each side.


The supersized litigation team presents immense management challenges that even an experienced big case trial lawyer may not be prepared for. These eight guiding principles, which have stood the test of time, will ensure that, once the game is afoot, your battalion of lawyers will vanquish the foe.


Trim the team. While you might need a lot of people to do the job, you still need to work hard to keep the team as small as possible. The presence of underemployed players means work that could be done more efficiently by someone with a deeper commitment and understanding of the case gets shifted to marginal participants. Because they have only one foot in the case, they are prone to become unavailable due to other commitments just at the time you might actually need them.


Here’s a way to police things. Every month, look at the number of hours billed to the case by each member of the team, top to bottom, and calculate what those hours represent as a percentage of each person’s total billed time. An associate who is consistently a quarter-timer is a bit player. Get rid of the bit players. Everyone on the team should be worrying about the case in the shower. You don’t want people on the team whose attitude is “I’ll do what I’m asked to do—and hope I’m not asked to do too much.”


Reject the old school CEO mentality. Trial lawyers who find themselves at the head of a major trial team are often tempted to adopt a CEO mentality. Delegate and go home at five. Appoint a key younger lieutenant or two to run the day-to-day operation of the case, with limited and carefully selected involvement by the chief. Isn’t that the classic management structure? It won’t work, or at least not well, with a team of lawyers. There should of course be an organizational structure within the team, and much of the necessary communication can go “through channels.” But you will get the best results if you stay in periodic, direct touch with every member, down to—and perhaps most importantly—the newest and most junior.


Make the project list your problem. Few things facing the senior lawyer on the supersized trial team are more important and challenging than managing who does what, and by when. Without careful attention from the top person, assignments are given out on the fly, by whomever thinks of it, to whomever they happen to think of. Relying on hurried conversations or cryptic email, and plagued by imperfect recollection, projects fall between the cracks, lawyers go off in the wrong direction, and deadlines become mushy.


Napoleon taught us the value of putting our orders in writing. So, spend time every day thinking about, looking at, and revising the project list. A few suggestions for how to make the project list an effective document: (1) no arbitrary deadlines; (2) circulate a revised project list every week; (3) never let a blown deadline remain on the list; (4) never let a deadline pass in silence; and (5) be aware of what every team member is doing.


Get “All Hands on Deck.” Big trial teams allow the efficiency of specialization that big cases require. Individuals or teams within the team focus on damages, or individual claims, sometimes even on a single critical factual issue, or a pivotal expert witness. The advantages of such specialization are obvious. But beware. Specialization is a close cousin of balkanization. Communication, morale, and left-hand-right-hand problems abound. How do you combat this without losing the benefits of specialization?


The solution begins with the all-important trial outline (sometimes called the “order of proof,” or “opening statement”). At the earliest possible moment, start putting down on paper in outline form the key points, sub-points, and evidentiary support for the story you will eventually tell in court, beginning to end. Address every element of every claim or defense. Build into the outline your responses to the other side’s key points. Organize it like a story being told orally, which, ultimately, it will be (and why some people call this the opening statement). In the mega-case, the trial outline is the glue that keeps your far-flung troops from stumbling around at cross purposes, in isolation.


Here are three suggestions for the effective trial outline in the mega-case: (1) Do not delegate lead responsibility for this to a junior person; (2) Get as many people as possible actively involved in this process because they may know more about the nuances of accomplishing each task added to the list; and (3) while the trial outline will be an essential read for anyone on the team, it is no substitute for getting people on their feet to present the story orally to an audience of the team and client. I call this All Hands on Deck. Set aside a day. Have individual team members present one aspect of the outline, including key documents and demonstratives, followed by discussion, critique, and a game plan for moving forward. Nothing focuses the mind so well as the need to stand up in front of an audience and present your case, or part of it, as though it were being argued to a court or jury.


Don’t let document review become a junior varsity event. The massive nature of the mega-case document review often means that even if every lawyer available to you did nothing else, the document review would take years. One solution to this problem (although one that some lawyers resist) is to retain contract lawyers who, when used properly, can make possible the otherwise impossible. The problem is that a number of things lead us to treat them as adjuncts to the process and to keep them in the dark. But they must be fully integrated into the team to be able to make intelligent, informed decisions.


To facilitate contract attorneys’ integration: (1) make sure there are multiple, high-level points of contact and interaction between the contract attorneys and the rest of the team; (2) make sure they understand the theory and crucial points of the case, and the players in the case, so that they can identify what is important in the documents; and (3) make sure they are there for All Hands on Deck.


Keep the team meetings short, focused, regular, and mandatory. Aside from the trial outline itself, there is nowhere in preparation for trial that the lead trial lawyer’s hand needs to be felt more firmly than in preparing and conducting the team meeting. The keys to successful team meetings are to keep them short, focused, regular and mandatory. Exhort the team members to move heaven and earth to be present—at least by phone. Make it a rule that if someone cannot attend, he or she must let you know in advance. Second, set aside a precise and limited amount of time—perhaps 60 or 90 minutes, depending on the case—and stick to it no matter what. If there is more to do when time expires, do it another time. Third, prepare for the meeting. Sit down with the project list and rehearse exactly what you want to go over. Fourth, get everyone on the team talking if at all possible. Finally, do this every week. If there is little to report in a given week, the meeting will be short. But resist the temptation to cancel.


Technologize to the max. Are you a technophobe? Or a techno-agnostic? This is the time to get over it. Take the time to make sure that you and your team have ready access to a web-accessible database that you and your team members know how to use. It should contain the project list, team directory, pleadings, correspondence, memoranda, and transcripts, and, ideally, all produced documents. It will not solve the problem for the documents to be in your firm’s document management system if accessing those documents requires a painful, multistep, hard-to-remember process. This is an area in which it pays for you to get down in the weeds. Figure out what really works, and will be used by the team, and then use it yourself.


Sleep is preparation. A high-stakes case on trial is not the place for those who require a solid eight hours of sleep every night. Sleep deprivation is the norm. But there are limits beyond which team members (including you) should not go, absent the most compelling circumstances.


Talk to your team about this before the trial starts. Underscore that it is their responsibility to get done what they are asked to get done, and get enough sleep to do it all over tomorrow. Obviously, it is not a solution to simply leave at a certain hour, with critical assignments unfinished. Rather, the point is that everyone (including you) must look at what he or she has to do and figure out how to get it done and done well, at a reasonable hour. In my experience, most all-nighters are avoidable. They often are the result of poor organization, lack of discipline, and lack of focus, rather than unavoidable demands of the case. Having been through many long trials, I believe that if the collective time lost during the three hours after the end of the trial day were converted into sleep, half or more of the sleep deprivation problems at trial would be avoided.


It all comes down to time. Senior litigators must commit time to management issues that some may think should be done by others. But if you invest the time—from early on in the case—you will not regret it. Your trial outline will be refined, the documents you need to make your case will be in order, your meetings will bring clarity and cohesion to your client’s story, and the case you present will be consistent and persuasive. Every member of your trial team will be engaged, informed, and indispensable. And those happy few will share the honor of victory with you.


Keywords: litigation, mega-case litigation teams, trial tips, trial management


Steven D. McCormick practices with Kirkland & Ellis LLP in Chicago, Illinois, and is adjunct professor of law at Northwestern University School of Law.


This article was adapted from a longer one that was published in the Summer 2010 issue of Litigation.


 
  • January 6, 2011 – Good refresher for us all. I am reminded of the "Seven P's of Life," with apology for the redundancy, but seven sounds better than six: " Proper Prior Planning Prevents Piss-Poor Performance."

 
 

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