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As pressure mounts for corporate America to do more with less, general counsel and in-house teams are under increasing pressure to reduce costs and increase efficiencies. Progressive law departments continue to bring more legal functions in-house and to use outside counsel less and with greater precision. Forward-thinking GCs operate their departments with the same focus and discipline as their counterparts in business units. Just as world-class manufacturing companies use nimble technology, strategic sourcing agreements and workflow and project management to make and deliver their products, now, some law departments are doing the same. These departments no longer "farm out" most of their corporate and commercial legal work to outside firms. Instead, they use law firms for highly specialized work that is impractical to bring into an internal legal function.
Companies are hesitant to bring litigation work inside because it can be resource-intensive, and most law departments do not have the head count to support it. However, many of today's law departments are generating efficiencies by taking a more active role in litigation management. They are creating litigation teams built around outside counsel, outsourced technology providers and interim staffing and other alternative legal services providers. The GC and his or her law department are the architects of custom-built litigation teams.
An experienced law department working with process and project management experts can unbundle legal services by identifying natural procedural and substantive fault lines in a case. While all aspects of the case are connected, the fault lines give the law department the ability to break the case into modules. Each module encapsulates distinct types of case activity that can be staffed appropriately. By tapping good project and process managers, a company can staff each well-defined module with cost-effective specialists who give their full attention to their areas of responsibility.
Pharmaceutical litigation is an example of where a modular, unbundled approach reduces cost and improves efficiency. In the past, pharmaceutical companies often gave their outside firms autonomy on how to manage and staff larger cases. Now, due to limited financial resources and the expense of law firm pricing models, companies can no longer give firms pervasive influence over the management of litigation.
Below are five areas where GCs can implement a modular approach and use alternative legal services providers (including contract attorneys, experts, discovery services providers, national court reporting services and subpoena services) to amplify outside counsel's ability to stay focused on the most complex parts of a case.
Using contract attorneys to review documents is accepted practice. Companies routinely contract directly with staffing and service providers to collect and review litigation documents and to work collaboratively with outside counsel. The costs savings are enormous—depending on the market, review rates can often sometimes go as low as $35 an hour. In addition, an increasing number of companies rely on artificial intelligence programs such as technology-assisted review (TAR) to reduce the time and number of documents that must be reviewed.
To fulfill good-faith discovery obligations, attorneys must give well-researched, vetted answers and objections. Doing that takes a village. Typically, outside and inside counsel work with company employees, review documents and undertake case-specific analysis. An alternative approach is to work with contract attorneys that are hired to collect and review the documents. They can be valuable partners in this process. Their ability to navigate the document database and develop an in-depth understanding of the documents can help to streamline the research process and provide unique insights.
Once master responses are developed, the contract attorney team can draft an initial response when a new set of interrogatories come in and route it to the case team for review. With good templates and playbooks, integrating contract attorneys into the preparation of written discovery responses can significantly reduce the associated costs and create the types of efficiencies that result from specialization.
In large pharmaceutical cases, for example, there are often a lot of plaintiff's and treating physician's depositions that can have nuances. However, standardized deposition outlines, good training modules and a consistent approach to organizing medical records can enable the company to use experienced contract attorneys that are well-versed in both personal injury and medical issues to take these depositions. Specialized contract attorneys cost less than half of what a less-experienced associate would and don't have to travel. Because they are local, they also tend to have fewer issues and disputes with the attorneys representing the plaintiff in that jurisdiction. By using a national court reporting service, transcripts can be routed to a designated person in a searchable electronic format. This allows for better tracking of the deposition process and speeds up the case evaluation process.
In large matters, the cost-effective way to review and organize records is using an outside service provider with the scale and expertise to review them efficiently. Law firms rarely have the capacity to keep up with the volume in cases with a lot of plaintiffs. Outsourced services providers can drive systemic efficiency by building teams of professionals with the relevant expertise. These services also have robust project management and can efficiently push out information to the lawyers responsible for depositions and settlement valuation.
Lead counsel is responsible for complex motion practice and the legal research that goes along with it. But, when litigation cuts across multiple jurisdictions, there will be state law issues that contract lawyers with experience in that state can address promptly and competently. Issues such as the applicable statute of limitations, the ability to recover from pain and suffering in a wrongful death case, the availability of prejudgment interest and limits on punitive damages are generally jurisdiction-specific. The experienced contract lawyers that assist with local depositions can often advise on those issues quickly and inexpensively.
Modularizing large-scale litigation, such as the pharmaceutical litigation, construction defect or mass product failure cases, drives systemic savings. The company can use less expensive and more experienced resources to take on parts of the lawsuit that lend themselves to standardization and process management.
When the client becomes the architect, they can impose business discipline around how litigation is managed, ensuring team members are accountable for the work they are doing. By adopting the modular approach to litigation management, the legal architect enables outside counsel to focus their time and considerable talents on developing a theory of the case, navigating complex legal issues and working with senior management to limit the company's exposure. Modularization done right ensures that every member of the defense team is deployed to their highest and best use.
This article was featured in Corporate Counsel.