In the first two installments of this series we explored ways in which in-house counsel should prepare for when litigation happens and steps to take when it does. In the last of three installments in this series we look into what in-house counsel’s role is during trial.
Despite the cost, the risk, and the general messiness of it all, disputes do go to trial. When that happens, everyone heads down to the courthouse for a good old-fashioned battle royal. In-house lawyers generally tag along, even though they have little to do in terms of putting on/defending the case. Still, they have an important role to play. Below, I discuss some of the things in-house lawyers should be doing at trial.
Be there
If your company is at trial, someone from the in-house team needs to be there, everyday and working behind the scenes with the trial team. You cannot “outsource” your responsibility to participate. It is your job and your duty to be there. Depending on the stakes (or the number of lawyers in the department) who goes can vary; when the risks are high, that’s when the general counsel herself needs to find a seat in the courtroom every day. You do not want the CEO asking why you are not at the trial, especially when there are big dollars or big risks on the line.
Get Ready
Getting a case ready for trial is a monumental undertaking. Count on your trial team being exhausted and stressed. Likewise, business colleagues who must testify will be scared, tired, and unhappy to be part of the process. To add to the fun, the senior management and board of directors will be cranky – upset about the cost and the risk of the process (though, hopefully, you have been keeping them up to date about the case, the costs, and the risks). Odds are good that where senior management was once the group pounding their chests the hardest about seeing the matter through to trial, they are now asking you every 30 minutes why the case hasn’t settled. All of these interests, concerns, and agendas need someone like you to cheer them up and calm them down. No matter how you may personally feel about the case and the odds, you need to break out the pom-poms and be positive and reassuring at all times (without over-promising). Take time to thank the trial team, your team, and the witnesses for their sacrifice and efforts on behalf of the company. For the business, it means being patient and taking time to explain what’s happening, why it’s important, and how whoever you are talking to can help the company.
A corporation cannot “show up” at trial. Someone needs to be the face of the company. Someone has to be there so the judge and jury have a live person to relate to. Sometimes, depending on the size of the case, this may be a senior officer of the company. But, more frequently, it’s one of the in-house legal team. Being the face of the company is not an easy job – you have to be humble, sincere, likable, and able to keep a poker face through pretty much whatever comes out of the mouths of the lawyers and witnesses, which can be difficult. Your trial counsel will help you in this role but be prepared to get a lot of “advice” on how to act, how to dress, how to cut your hair, etc. Image matters, and in addition to your image, be on guard to protect the image of the company and to project an image that is both truthful and tailored to the situation.
Act as liaison
One key role of in-house lawyers is acting as a liaison between the outside counsel team and the business. You are:
- The person who provides updates about the trial to senior management. This is usually in the form of a daily debrief at a set time every evening or morning (and ad hoc if the issues are urgent enough). Be prepared to give a little “Trial 101” at times as you will likely need to explain what is going on and put it in context for the “civilians.”
- Someone to help keep company witnesses calm before they have to testify, answer their questions, ensure they are comfortable and feel “ready” to go.
- The liaison between the trial team and the general counsel or head of litigation.
- Point person for other parts of the business that need to be involved with the trial, for example, the corporate communications team, investor relations, IT, etc.
- Acting as a buffer between senior management, the board of directors, and your trial team.
The U.S. legal system is incredibly open and built on access by the public (and reporters). Not only is the discovery process intrusive and baffling to the business, but the ability to keep unfortunate, cringe-inducing, confidential, or otherwise irrelevant documents and emails out of the public eye is limited; by rule and by the whims of the judge. On the other hand, no one knows the company’s secrets and sensitivities like its in-house lawyers — certainly more so than outside counsel no matter how good they are. Your job is to review every exhibit that your side, and the other side, has identified for use at trial to determine if there are any issues around confidentiality, like a trade secret, or other sensitivity, for example, embarrassing or potentially harmful to some business relationship outside of the dispute. Doing so is critical in terms of protecting the overall interests of the company vs. the specific interests at play at trial. If you know that problematic or embarrassing documents may be revealed during the trial, inform the general counsel, corporate communications, senior management (plus the board of directors if appropriate), and the author so they can prepare themselves for any fallout.
Motions happen
There are many motions (and responses to motions) filed during trial, including pre-trial and post-trial. Your job as in-house counsel is to read everything your trial team proposes to file on behalf of the company and — if you disagree with something — to speak up. Outside counsel cannot possibly have the same knowledge of the company that you have as in-house counsel. Bring that knowledge to bear to help the trial team draft their motions and responses. Don’t be intimidated by your trial team — they work for you!
Settling too
Many cases are settled during trial. If the opportunity to settle the case during trial arises, in-house counsel (preferably one not involved in all of the day-to-day actions) should consider forming a “settlement team,” a group separate from the trial team. This group will be responsible for trying to settle the case and ensuring that the trial team is not distracted.
One of your most important tasks is to pull back from the frenzy that swirls all around you while a trial is proceeding and take a “big picture” look at what is going on. Here are some things to look out for:
- How is the trial proceeding generally? Do you feel good about it? Does the team feel good about it?
- How are the judge and the jury reacting to each side’s witnesses, evidence, and overall presentations?
- Has anything unexpected come up — testimony, a document, anything that was not factored into how you viewed the case coming into trial?
- How are the judge and jury responding to your lawyers? To the other side’s lawyers?
- How are the company’s witnesses holding up?
- Is there an opportunity to strike a settlement vs. letting the case go to the jury? Should you settle?
Just keeping your eyes open in this manner can be an invaluable service depending on what you see.
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As in-house counsel, you may think your role at trial is limited to sitting on a bench in the back of the courtroom. It’s not. Plan on the same long days as your lawyers. In addition to the above, be ready and willing to pitch in. You may be able to recover attorneys’ fees for your time. While trials are rare, they do happen, and in-house counsel has a vital role to play throughout the entire process. If you have a subscription to Practical Law, you have access to many resources that can help you perform better in this vital role.
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STERLING MILLER, HILGERS GRABEN PLLC
Sterling Miller is currently CEO and Senior Counsel at Hilgers Graben PLLC. He is a three-time General Counsel who spent almost 25 years in-house. He is the author of five books and writes the award-winning legal blog, Ten Things You Need to Know as In-House Counsel. Sterling is a regular contributor to Thomson Reuters as well as a sought-after speaker. He regularly consults with legal departments and coaches in-house lawyers. Sterling received his J.D., with honors, from Washington University in St. Louis.
