At the In-house Counsel Litigation Conference held at the Law Society and sponsored by Stewarts, one of the panel sessions examined the issue of preserving value through litigation.
The panel consisted of practitioners from a wide range of backgrounds, which allowed for an array of knowledge and experience to be shared. The panel moderator was Ben Rigby, Editor in Chief of Commercial Dispute Resolution and the panel consisted of Julia Chain, Senior VP and UK Managing Director, Consilio/Advanced Discovery; Dave Hart, Head of Litigation, BT Group; Kenny Henderson, Partner, Co-head of Competition Litigation, Stewarts; and Antonio Suarez-Martinez, Assistant General Counsel, GSK.
The four main points of discussion were: creating value, demonstrating value, understanding value and recognising value.
Julia Chain kicked off the conversation with a discussion about how in-house counsel can contribute to a business’s value by understanding its business goals and needs, and working with business colleagues in a proactive rather than merely a reactive role. It was noted that a useful by-product of litigation is to spread brand recognition.
So, how should in-house counsel go about identifying revenue opportunities?
Kenny Henderson pointed out that the first thing to do is get “buy-in” from the relevant stakeholders. Being able to establish how ideas will be received before making those decisions is helpful.
Antonio Suarez-Martinez felt that the role of a litigator shouldn’t be one where they sit back and wait for problems to arise, but one where they should be on the front foot and adding value to the business.
“We are a support function,” said Dave Hart. “We are there to help the business meet its objectives.” This could be through crisis management or by seeking to use litigation or regulatory challenges to strive for strategic possibilities for the business.
It was suggested that the function of an in-house lawyer is no longer to simply be a caseworker but to assist in improvements across the whole company.
Remembering past events was cited as a key way to do this; making sure that problems which have arisen in the company before do not occur again. This is what’s called “the institutional memory”. Sometimes companies can forget certain publicised issues that they have faced and it is up to the in-house lawyer to remind the company.
Reducing costs by considering different proposals from various external lawyers was offered as a way in which an in-house lawyer can cut costs for the business. However, it was stressed that cutting costs should be carefully considered so as not to reduce quality. Julia Chain pointed out that continuing to use external experts where they should be used was imperative. It is worth investing in external law firms where the advice they are giving you will potentially save you millions of pounds. It was suggested that the best way to manage external lawyers was to build a selection of individual business advisors and see your role as managing that team.
Antonio Suarez-Martinez pointed out that having a separate procurement department to negotiate contracts with external lawyers was helpful as not only does it spare the in-house counsel’s time, but it removes the in-house lawyer from what can be tricky discussions about fees. It therefore allows their relationship with the external lawyer to be built purely on the substantive legal issues.
In-house litigators can often be seen as the ones bearing bad news. The challenge is to change that mindset by becoming a valued member of the business who fits with the company’s overall strategy. “The role of the in-house litigator has to evolve to be that of a strategic advisor,” said Antonio Suarez-Martinez.
A key concern raised was where a business’s appetite for risk decreases mid-litigation. If things start to go wrong and directors start to doubt the company’s involvement, where does that leave the in-house litigator?
Julia Chain pointed out that knowing the risk appetite of your business from the outset is very important. Litigation teams are often not considered part of the company’s business community but rather the people you turn to when you are in trouble. Making yourself someone who understands the business and is a part of the overall strategy is a helpful step. “Be a business person who is also a litigator and not the other way around, ”she said. In-house counsel should feel that they are integrated into the business and not a separate component.
Kenny Henderson agreed that relationships across the business are important in order to demonstrate value. “You want there to be a positive feeling, even after litigation,” he said. Becoming a trusted advisor is a key part of that.
There are two ways to communicate the value that you create: internally and externally.
The general counsel needs to command the confidence of the CEO in order to gain internal support.
External recognition through awards was also raised. Dave Hart felt that if you focus on being able to deliver an outstanding experience for your internal clients then the awards will follow naturally.
Julia Chain ended the discussion with a reflection on the role of the in-house lawyer: “An in-house legal team is vital for the wellbeing of a business – they shouldn’t just think of themselves as service people.”
Interested in attending next year?
In-house Counsel Litigation Conference 2018