Football and litigation both require strategy and strength, and enterprise-threatening litigation can be as important to a company as the Super Bowl is to a football team. As litigation becomes increasingly expensive, the following 10 football lessons can help both you (as a client) and your lawyers litigate enterprise-threatening litigation more effectively and efficiently.
1. Know the Cost of Playing the Game
Your company should work with counsel (or prospective counsel) to develop a litigation budget. Though litigation budgeting is not an exact science, experienced counsel should be able to develop a relatively detailed budget for each expected phase of the case. When choosing between firms, avoid “biting on the play fake” — selecting counsel just because they present the lowest budget estimate. Many have learned the hard way that a low budget may be more a product of salesmanship (or flawed assumptions) than reality, and actual litigation costs may far outstrip the estimate. Challenge the budget and its assumptions to ensure the budget realistically reflects the lawyers’ experience on other similar cases. Consider including incentives for beating the budget and disincentives for failing to do so.
“Consider including incentives for beating the budget and disincentives for failing to do so.”
2. Develop a Game Plan
Good teams establish a game plan long before the opening “kick-off.” Litigation is no different. Work with counsel at the very outset of a dispute (preferably before litigation commences). Investing early to realistically assess the strengths and weaknesses of your position as well as the most likely outcome is money well-spent. Then, based on this assessment, develop a strategy that gives your company the best chance of maximizing the outcome (sometimes that means minimizing loss). Consider working into your game plan early efforts to resolve the dispute (whether through mediation, a CEO-to-CEO meeting, or other form of ADR). Being practical and cost conscious does not mean your position is “weak.”
3. Make Sure Your Coach and Quarterback Show Up
No team takes the field with a coach or quarterback who only appear for the first and last few minutes of the game. Neither should you. When engaging counsel, require commitments that you will receive a full-time coach (the lawyer with overall case responsibility) and, if different, a full-time quarterback (the lawyer responsible for the day-to-day execution of the game plan). Be wary of the “name” partner who shows up for the sales pitch then disappears. In short, know who your team is before you take the field.
4. Win the Game in the Trenches
Coaches and commentators frequently discuss winning and losing based on the offensive and defensive linemen’s work in the “trenches.” Litigation is no different. Know who the more junior lawyers on your team will be. They will be interfacing with your adversary’s junior lawyers and be your “first line” of defense or offense.
5. Use Your Headset
During a game, field coaches regularly communicate on their headsets with coaches in the booth and in the ears of the players on the field. Constant communication is key to their strategy. During litigation, communicate with your counsel on a regular basis. Request or require regular updates. Discuss strategy, costs, and performance to budget.
6. Use Half-Time and Time-Outs
Every sport includes time-outs and significant breaks between periods, quarters, or halves for good reason. These breaks provide an opportunity to evaluate how the game plan is working and to make short-term (time-outs) and longer-term (half-time) adjustments. Litigation never proceeds exactly according to plan or by the preliminary budget. You and your counsel should regularly assess the effectiveness of the initial strategy as well as budget performance. Don’t dismay at these necessary adjustments to either or both. Those who adjust most quickly and effectively are most likely to achieve the best possible outcome.
“During litigation, communicate with your counsel on a regular basis. Request or require regular updates. Discuss strategy, costs, and performance to budget.”
7. Minimize Mistakes/Avoid Major Penalties
Coaches hate game-changing penalties or mistakes. So do litigators. Once you or your counsel engenders the court’s distrust, reversing course becomes very difficult. Your team can avoid mistakes — such as rules violations, court sanctions, or missed deadlines — through careful planning, communication, and attention to detail. Document and data preservation is a particularly perilous area. As soon as you face a litigation threat, you have a duty to preserve all relevant documents and data — however onerous or costly. Failing to preserve can easily turn a good case very bad, resulting in substantial additional litigation costs as well as monetary and evidentiary sanctions. Play clean and avoid the penalties.
8. Play Your Game, not Theirs
Stick with your game plan. Don’t allow an opponent’s bad behavior to push you off track. Indeed, most often, your opponent’s misbehavior indicates your strategy’s effectiveness. Also, do not confuse aggressiveness with effectiveness. Litigation is expensive enough. Fighting for the sake of fighting can and does dramatically increase the cost with almost no corresponding benefit. Ensure you respond proportionally. Ensure your counsel understands your objectives and only fights the battles worth fighting. Huddle up when they are behaving in a way you consider counter-productive or inconsistent with your company’s image.
9. Identify and Exploit Your Opponent’s Weaknesses
A successful football team does not throw deep against the best defensive backfield in the league or force running plays to the right against the best defensive tackle. Similarly, successful litigators provide an early assessment of your opponent’s weaknesses, needs, and wants, and develop a game plan accordingly. Your counsel may be able to identify something you can offer as part of a compromise that does not really cost your company anything (or at least in comparison to other alternatives). The most successful lawyers view the whole field, not just the next ten-yards, and focus their energy as much on their opponent’s case as they do on their own client’s.
10. Owners Should Ask Questions, but Avoid Calling the Plays
One final lesson comes from the team owners we have all seen on television pacing the sidelines. Fans may roil at the thought of the owner telling the coach how to coach or the players how to play. But, in the litigation world, it is your case. Your company bears the litigation costs as well as the risk of success or failure. You have the right to ask questions, both as to strategy and cost. Your lawyers should welcome your questions and involvement.