ACC Spring Symposium
May 21, 2009
Litigating on a 2009 Budget
Prepared by:
Mark Habbinga, Esq.
Director of Discovery Solutions
(O) 214 \– 470-9142
(C) 214-893-2220
mhabbinga@epiqsystems.com
Agenda
• Introduction
• Corporate Counsel Survey
• Top Ten Corporate Counsel Strategies for
Litigating on a 2009 Budget
• Top Five Things Law Firms are doing to
“Feel Your Pain”
• Conclusion
Introduction – Your Humble
Speaker
Mark Habbinga, Esq.
Director of Discovery
Solutions
mhabbinga@epiqsystems.co
m
Office: 214-470-9142
Cell: 214-893-2220
Introduction – Epiq Systems
• I
Global Reach and Experience
Local eDiscovery experts and multilingual staff bring a consistent approach to multinational matters.
Public Company
Epiq Systems has been a publicly traded company
since 1997.
Full financial information is available at
WWW.EPIQSYSTEMS.COM.
Epiq is Safe Harbor certified and fully compliant with
the security requirements for ITAR data.
Introduction – Epiq Systems
eDiscovery Solutions
Full Life Cycle Litigation and electronic
discovery services & software –
Collections, Forensics, Processing, Hosting,
Review Services, Data Repositories
Corporate Restructuring Solutions
Chapter 11 case management,
administration and consulting services
Bankruptcy Solutions
Chapter 7 and Chapter 13 case
management software and solutions
Class Action and Claims Solutions
Technology based solutions for class action
and mass litigation case management
services
Corporate Counsel Survey
•
•
•
•
Unofficial and Non Scientific Poll
25 Corporate Counsel Polled (20 GCs)
Dallas and Ft Worth
Industries include: Banking,
Entertainment, Hotel, O&G,
Outsourcing, Professional Services,
Retail, Transportation
• Department sizes ranging from 2 staff
members to 300 members of legal team
Litigating on 2009 Budget
Standard Questions Asked:
1. Workload Increase? – 100%
2. Litigation Case Load Increase? – 50% (100%
future)
3. Internal Department Budget Frozen/Cut? – 92%
4. Directed to Reduce Outside Counsel Budget? –
100%
5. Team Reductions? – 30%
6. Changes to OC Fee Arrangements? – 80%
7. Changes in OC? – 35% / 80% consider
Strategy #1:
Bring It In House
• Keep More Legal Work In-House
• Bleeding the Turnip / Whipping a Dying Horse
• Headcount v. Outside Counsel Spend
– Build a profit center + plus incentive program
– Virtual Members of your In-house Team
– Secondment (Law Firm Associates on a Term
Basis)
• Firm pays salary + company pays a bulk rate
• Company pays salary only
• First Pick of Larger Cases
Strategy #2:
Take the Controls
• More Management of the Litigation Process
– Clear Guidance from the Outset
– Set Performance Metrics
• Ask for and monitor litigation budgets
– Budget through Trial
– Monthly and Annual budgeting
– Litigation Phase budgeting
• More Detailed Billing
– Running and annual case totals
– Break down every person billing
• Limit number of attorneys / experience level
Strategy #3:
Pick Your Fights – Early Case
Assessment
• Manage the business peoples unreal
expectations
• Determine in advance your Litigation Size
thresholds
• Risk Benefit Analysis for each case – what
is your true exposure
• Settle v. Blood in the Water Consideration
• Standardize Pre-dispute DR / Offer
Limited Discovery
Strategy #4:
Negotiate Multiple LF Rate
Options
• Reduce Hourly Fees / Volume Discounts
• Flat Fee (High Low Gamble)
• Blended Rates (Easier to Budget, Seniority
Issues)
• Performance Based Options
– Reduced Hourly plus Bonus
– Hybrid – Reduced Hourly plus Contingency
• Loss Leader Approach – Routine work for
free
• No Long term contracts / Competition /MFN
Clauses
Strategy #5:
Re-Evaluate Your Firm
Relationships
• More Firms on the list
• Competitive Bid Larger cases / Case
Types in bulk
• Boutiques and Smaller Firms
• Multiple Firms per case (Lead and
Discovery Counsel)
• Secondment / Term Attorneys
• Virtual In-house Attorneys
Strategy #6:
Drive the eDiscovery Process
Exposure
Preservation
Strategy
Oversight
Processing
Analytics
• Select a Full Life Cycle Partner (Economies of Scale)
• Engage your Partner Early
– Narrow Collections
– Prioritize Your Discovery
– Staged Discovery with eye on Settlement/MSJ
• Use an Advanced Non-Linear Review Platform
– 50-73% Man Hour Savings
– Tighter Timelines
• Consider Document Review Services
– 50-75% Cheaper Per Hour
Review
Production
Elements of Electronic
Discovery
Exposure
Preservation
Strategy
Oversight
Processing
Analytics
Review
Production
Elements of Electronic
Discovery
Exposure
Preservation
Strategy
Oversight
Processing
Analytics
Review
Production
Elements of Electronic
Discovery
Exposure
Preservation
•Litigation
•Internal
investigations
•Government
Inquiry/
investigations
•Antitrust
•Compliance
•Where is the
data?
•Who has the
data?
•Is a legal hold
process in
place?
•How is data
collected?
Risk, Cost, Volume
Strategy
•Limit scope
of discovery
•Data
sampling
•Balance risk
and cost
•Settlement
vs. trial
Oversight
Processing
Analytics
Review
Production
•Validation of
results
•Accounting
for outcome
•Review
priority
•Managing
budget and
deadline
•Data
reduction
•Prepare data
for search
and analytics
•Format data
for review
•Special data
handling
•Data
reduction
•Data mining
•Group and
compare
similar
documents
•Group and
compare
eMail
conversations
•Locate
documents
based on
sample
•Subject
matter
training
•Technology
training
•Productivity
tools
•Performance
monitoring
•Accuracy
•Consistency
•Artificial
intelligence
• Benefits
and
constraints
• Novel
approaches
to minimize
cost
Efficiency, Predictability
Strategy #7:
Require The Use of Technology
• Litigation Tracking Platforms
• Automated Hold Processes
• Advanced Review Platforms w/
Accelerators that reduce the man hours
needed
• Shared Data Repositories = Cost Sharing
• Communications
– More Teleconferences
– Video Conferences in lieu of traveling
Strategy #8:
Re-Consider Alternative Dispute
Resolution
• Be Involved in Negotiating Contract Terms
• Mediate Early and Often
• Consider Hybrid Models
– Med/Arb
– High/Low Expedited Arbitration
• Consider a Special Master
– Discovery Master
– Settlement Master
– Special Trial Master
Strategy #9:
Perform Post Mortems Every
time
• Root Cause Analysis
– Examine Prelitigation Complaints
– Reduced Litigation / Better Customer Services
Scores
• Review Budget v. Actual Total
• Review Case Benchmarks and Goals
• Engage OC to help with more training of
employees
– Brown Bag Lunches
– CLE
– Audits
Strategy #10:
Improve Your Network
• Build a Network of Trusted Colleagues
– Same & Different Industries
• Attend Corporate Counsel Organization Events
–
–
–
–
Association Of Corporate Counsel
TxGCF
DBA / FWBA Corporate Counsel Section
Texas Bar Association
• Professional Networking Communities
– Linked- In
– Texas Bar Circle Connections
– Others
The View from the Outside
(Counsel)
1.
2.
3.
4.
Proactively Talking to You
Offer Multiple Litigation Solutions
Offer and Use Outsourcing
Put the Counsel Back Into Legal Counselor
–
–
–
–
Complimentary Training / Brown Bag lunches
Neutral Assessments – Risk/Reward Analysis
Standing Update Calls
Absorbing Travel
5. Doing Routine Work for Free / Nominal Fee
Special Thanks To:
Whitaker, Chalk, Swindle & Sawyer LLP
Questions
Mark Habbinga, Esq.
Director of Discovery Solutions
mhabbinga@epiqsystems.com
Office: 214-470-9142
Cell: 214-893-2220