it is the principle that matters.” While that
may all be well and good, fighting too many
cases on principle can find the good litigation manager looking for a new job.
The vast majority of litigation can
be, and should be, quantified in financial
terms. Most litigation management programs take a comprehensive approach to
financial results, considering such items
as legal spend, indemnity or claim payments, internal staffing costs or revenue
impact from litigation.
Most litigation will resolve, with or
without effort, but unlike a fine wine, the
age of a particular case does not often
make it better. A common goal of litiga-
siderably in the past few years. Clients and
law firms have had transactional data for
quite a while. Clients know what they spend
and law firms know what they receive.
on relationships with clients. That day has
come and gone. Most (if not all) of the
litigation management programs implemented during the past 30 years were responses to data. Data is, and will continue
to be, a dominant factor.
Law firms, equipped with the right
resources, can perform the same, or similar data analyses as their clients. Some
clients will readily admit that at times, the
firm’s data is more accurate (or precise)
than their own.
The real issue for law firms and for
clients is how the data will be used. As
Carucci points out, “Having a relationship
built on trust and transparency is key. If
tion management programs is to influence
the litigation process so that results are
favorable and often achieved faster than
what the normal leisurely process of litiga-
tion provides us.
Bring on the Data
The latest evolution in litigation management is the use of data to influence the
litigation process. Each of our colleagues
makes substantial use of litigation data.
D’Angelo says,“Ultimately, one must
ensure that the business intelligence
developed in the context of a claim, suit
or investigation is fed back into a loop
of continuous learning within the cli-
ent company. My overarching goal is to
reduce the company’s susceptibility to
claims by improving the company’s prod-
uct or service, or the record of how it dili-
gently develops either.”
Litigation data itself has evolved con-
26 | LitigationManagement | summer 2011
Corporate litigation management
strategies that seek to learn from their
history will invest in systems and staff to
conduct these deep analyses. They will also
invest in training and systems to use their
data to influence future case decisions.
Some will also use the data to establish
alternative fee programs or to monitor law
firm performance.
Winkler suggests that “the use of
reliable data allows for the sharing of real
business knowledge, moving relationship
discussions from general anecdotal con-
versations to specific, performance-ori-
ented coaching opportunities that high-
light targeted areas for improvement.”
So our modern definition of litiga-
tion management should capture the role
of data.
The implementation of comprehensive strategies in order to achieve
favorable claim resolutions and efficiency in the litigation process, or
pre-litigation dispute resolution.
Effective litigation management will
yield measurable data aimed toward
providing fiscal predictability in the
litigation process.
Many law firms are concerned that
data will have a predominant influence
you don’t trust me and I don’t trust you,
we should not be doing business together.
I can’t achieve my goals unless I have a
trusting, efficient business partner.”
If the data isn’t shared fully then the
law firm is at a disadvantage. They will lack
the ability to manage toward success, if suc-
cess is comparative to other firms. However,
successful law firms should be able to use
their own data to monitor their own perfor-
mance under the program. Those law firms
will have the competitive edge.
Robert H. Peahl is Chief Litigation Management
Executive for Wilson Elser Moskowitz Edelman &
Dicker LLP in Washington, D.C. Thomas E. Best
is Senior Counsel for Atlanta-based Home Depot
U.S.A. Inc.
