A recent article by JDSupra highlighted some of the considerations for organization selecting litigation counsel for a particular matter. Establishing relationships with outside counsel and being able to select litigation counsel is one of the most important jobs for any General Counsel. There are generally two trains of thought when it comes to outside counsel. First, have litigation counsel on standby in case a dispute arises (i.e. you get served with a lawsuit or need to act fast in order to file a Complaint and/or injunctive relief of your own). Second, select litigation counsel depending upon the particular needs of the dispute, including its location, kind of legal issue, type of matter (i.e. bet the business versus general dispute).
The reality is that several factors are typically considered by General Counsel in selecting litigation counsel, including:
- Pre-existing relationship (either directly or via a trusted referral) – can “my guy” get this done?
- Fees – does the matter justify a $900/hour attorney or would a $350/hour attorney suffice?
- Expertise – is this the kind of legal issue where deep knowledge about the subject matter as well as the law is important?
- Reputation – will a known commodity, such as a named BigLaw firm, provide an advantage?
- Course of action – is this likely to settle where negotiation skills may trump trial skills?
Having represented countless organizations in various disputes all over the country as litigation counsel, primarily intellectual property litigation counsel, as well has having served as outsourced in-house counsel helping to select litigation counsel, I know the importance of these considerations. I ultimately agree that an organization should seek the best litigation counsel to fit its goals and business operations. Answering the above questions oftentimes will help General Counsel identify who is ultimately selected as litigation counsel.