Strategies for Litigation Management and Prevention Association of Corporate Counsel Jan. 17, 2017 Barbara Heim, Sunbelt Rentals Greg Skidmore, Robinson Bradshaw

Strategies for Success In Litigation Preparation and Prevention Early Case Assessment Select the Right Counsel for the Case Communicate Early and Often Spend Money Wisely Work as a Team What is Your Path to Victory?

Preparation and Prevention You can never know too much about your company Know your business Identify key business contacts Understand insurance coverage Have a plan in place to retain and hold documents Document retention policy (that includes email) Standard litigation hold memo Work closely with IT Develop a standard internal investigation process

Preparation and Prevention Education and training for the whole company Best practices (including IT) Call legal department with questions Privilege Use business teams to advocate for legal What are the risk areas for your company? Competition matters Operations in foreign countries/FCPA Labor and employment issues Interactions with government/regulators

Preparation and Prevention Who will be your litigation team? Internal crisis team Outside counsel Discovery team

Early Case Assessment Step 1: read the complaint What are the legal issues? What facts do you need to develop? Evaluate the claims based on your knowledge of the business

Early Case Assessment Think strategically about all aspects of the case Proper forum Insurance Adverse party (customer, vendor, competitor, third party) Opposing counsel Who are the key internal personnel? How does the case fit with other litigation? Is an early resolution possible?

Selecting the Right Counsel for the Case What do you need for the particular case? Good trial lawyer or strategic thinker Subject matter expertise Geographic location Familiarity with company and personnel Familiarity with forum, judge or opposing counsel How does the budget factor in to choice of counsel?

Communicate Early and Often Communicate internally Has anyone in the company dealt with this issue? Who in the company has subject-matter expertise? Who will be your internal resources for this case? (monitor for departures) Who are the other people who “need to know” (and how often)? Avoid surprises with internal clients

Communicate Early and Often Communicate with outside counsel Set expectations at the outset regarding communications, division of labor and decision-making Determine whether a budget is needed and how often it should be updated Convey as soon as possible how this litigation impacts the business Coordinate on whether/how to interact directly with business teams Maintain a two-way dialogue regarding changes in the case

Spend Money Wisely An early investment can save money down the road Knowing the facts is critical to success Interview witnesses and gather key documents Understanding the case helps you prioritize issues, avoid detours and maximize the chance for early resolution

Spend Money Wisely Budgeting Budget for different litigation phases Who should make up the team (internal and external)? Expect the unexpected

Work as a Team Divide and conquer What can realistically be done in-house? What should be done by outside counsel? What should be done by third-party vendors? Failing to share information is expensive

Work as a Team Working with the business Build trust Get the right people involved from the beginning Outside counsel should understand how limited everyone’s time is and not waste it Build trust

What is Your Path to Victory? There is a Path to Victory in every case Each case may impact the business differently Need to win the legal issues and set a good precedent? Need to avoid bad precedent? Need to resolve litigation to avoid the overhang and distraction? What does victory look like for this case? Prepare every case for trial, even though most cases do not go to trial

What is Your Path to Victory? Understand settlement options How does your company approach settlement? What authority do you have or can you get? Think creatively about settlement – both from your perspective and the perspective of your opponent Settlement process Consider mediation Use business people Manage expectations

Greg Skidmore (704) 377-8144 gskidmore@robinsonbradshaw.com Barbara Heim (803) 578-5911 bheim@sunbeltrentals.com