Managing litigation presents a whole new set of challenges and responsibilities to an in-house generalist’s already crowded plate. This article series introduces the art of litigation management from the in-house perspective with tips for various phases of litigation. In Part 1 of this 6-part series, we looked at what to keep in mind when commencing litigation. Part 2 continues the analysis of the commencement phase from the defendant’s perspective—what should you do when you receive a complaint?
When you receive a complaint, you should conduct an initial review of the matter and take certain initial steps as quickly as possible. Taking these actions promptly can pay off later in the litigation process. These actions include:
Read the complaint and determine the time to respond
Read the complaint carefully. Identify any factual claims and highlight them for internal vetting. Check the service date to confirm the reply date. Consider whether you’ll need an extension of time to respond (not necessarily “time to answer,” as your response may not be an answer to the complaint) and whether you should take advantage of any limited window to remove to federal court based on subject matter jurisdiction. If you need time to retain counsel, you should factor this into whether to seek an extension of time to respond.
Meet with business owners
Determine which persons/business units are related to the litigation and try to schedule time with the appropriate business owners/leaders to let them know about the litigation if appropriate. It is always advisable at the outset to try to establish a collaborative relationship and partnership with the business owners/leaders with respect to the litigation if possible; you want them to be responsive to legal requests during the course of the litigation. Discuss the location and nature of the relevant documents that might exist so you can properly scope the litigation hold. Ask them to preserve any communications and records relevant to the litigation in advance of issuing a litigation hold. Ask about others who may have been involved in the business relationship or may have documents or records relevant to the matter. This is also a time to set a cross-disciplinary meeting and develop the themes of the litigation as described in the preceding section. It is equally, if not more, important to have the buy-in of the business team on strategies of defense when the company is exposed to liability as when it pursues litigation in the first place.
Investigate opposing counsel and the judge
Check out opposing counsel. Look up the LinkedIn entry and firm bio for the named attorney(s) on the complaint, and review the firm’s website itself, to get a feel for who you are up against, their prior successes and failures in the same area of law, as well as the reasonable settlement values for cases of the particular type at issue. Also, look up the judge assigned to the matter to learn about their preferences and background, e.g., reviewing their bio and reading their practice pointers if available (most Federal court judges have them as part of their bio). Once you have retained counsel, they may be able to network with other counsel to learn about the judge and his or her ruling history. (In lower courts, a judge may not be assigned immediately, or the judge initially assigned may not be the judge who decides important motions or tries the case; this process should be understood before much time is spent in the analysis.)
Review PACER and local rules, and create a litigation binder
Check the PACER record if the case is a federal court matter, or check the local state filing system (where available) in state court matters. Create a litigation binder to track the case and ensure all relevant documents are well-organized. Review the local rules for the jurisdiction—it can be very beneficial to understand any local rules that may differ from what you remember from Civil Procedure 101 and litigation CLEs.
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Review relevant agreements
Review any agreements the legal department has in its possession that are relevant to the litigation, both to familiarize yourself with the contractual background and to evaluate potential opportunities to seek indemnification from clients/partners for the litigation (or from insurance). If you determine indemnification is a possibility, don’t delay. A prompt tender of defense is often a contractual requirement, and delay may result in a waiver of the right to a defense, particularly where there is a right to control the litigation.
Determine any insurance or indemnification coverage
Review insurance policies and agreements to determine whether the claim may be covered by insurance or by an indemnification obligation, discussed in more detail below.
Evaluate early settlement opportunities
One potential solution to new litigation is to seek an early settlement, especially if the expected costs of litigation will be high or your client’s likelihood of success is not as high as you would like it to be based on your initial review. An early settlement also allows the plaintiff to avoid significant litigation costs.
Conduct an early review of remedial measures
Look for root causes of the litigation. If any are systemic and not unique, consider gathering a cross-disciplinary team to evaluate steps to eliminate ongoing exposure to similarly situated parties. If the root cause is malfeasance or some other action that may require disciplinary action or up-the-chain reporting, involve the general counsel immediately so appropriate actions can be taken, perhaps with the involvement of human resources.
Issue a litigation hold and retain outside counsel
Last but not least, issue a litigation hold and retain outside counsel, discussed in more detail later.
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