Dan Harper is vice president, corporate counsel and secretary for Océ North America, Inc. He is also president of the Chicago Chapter of the Association of Corporate Counsel. The views expressed herein are the opinions of the author and do not reflect the position or viewpoint of Océ North America Inc., Canon Inc. or any of the Océ or Canon companies.
“The only real lawyers are trial lawyers, and trial lawyers try cases to juries”
I had the pleasure of participating in a jury trial last week in Houston. Generally, I do not take pleasure in working out of a hotel room and placing hundreds of thousands of dollars in the hands of 12 people who probably have better things to do than listen to businesses fight over money. However, in this instance I characterize the experience as a “pleasure” because it was intellectually stimulating (our trial counsel was outstanding), a bit of a break in the routine around the office and, most importantly – we won. It was very important to win this case for a number of reasons not the least of which is that we never should have been sued in the first place. There is terrific pleasure in seeing the look on the face of a losing plaintiff at the time the verdict is read when the lawsuit is, in my opinion, frivolous.
I have tremendous respect for trial lawyers, however, I take issue with Darrow’s quote. You see there is tremendous value in a lawyer that can work to avoid litigation and keep the case from the jury. Depending on the philosophy of your company, keeping away from the courthouse may involve paying off every claimant who takes the time to write a letter of complaint threatening a suit, or refusing to settle even a well grounded cause of action with definite exposure to the company. Most companies fall somewhere in between these two extremes.
Weighing all factors that are considered when making the decision to settle or not is a difficult task for the in-house team. First, you must assess the validity of the claim. If the claim is valid, and most often there is no clear line of demarcation between a good claim and a bad claim, the decision becomes easier. Do the right thing, resolve the conflict, reduce overall exposure and expense and go on with business.
However, when the facts are less clear, the likelihood of exposure a bit more tentative and the consequences of trial less certain, the lawyer must work closely with the business team to identify company goals (take a stand, make a public statement about the issue at hand, clear the good name of the company, set precedent for others of similar thinking) and consider other relevant factors such as cost, distraction from the business, likelihood of success and again, precedence, and decide to fight or not to fight.
I agree with the oft repeated remark that litigation is not good for anybody but the attorneys litigating the case. It is expensive, it takes a few years off of your life as in-house counsel and the lives of the witnesses who are nervous about making mistakes, losing their job if they say the wrong thing and being attacked by an aggressive lawyer on cross. Witnesses spend time in preparation for trial and testifying rather than doing what you pay them to do. And there is a good chance that you can lose. Of course, all of the factors cited above also apply to your opponent.
Every once in a while, you handle a case for which there is no settlement option. So, it is imperative that in-house counsel clearly outline potential exposure to the business client and guide them in considering the factors set forth above when making that final decision to fight or settle. And it is also an important job for in-house lawyers to educate the trial lawyer about our company, our values, our goals, our view of the facts, so that the trial lawyer can then tell the jury the winning story – because the lawyer who wins is the lawyer who tells the best story to the jury. There’s no way the lawyer can do that effectively without in-house counsel’s assistance.
With a clear disclaimer that the following in no way suggests my predisposition to litigate or settle a case on behalf of my company, I offer you the following, attributed to Jeremy Bentham (1748-1832), an English jurist and philosopher: “Lawsuits generally originate with the obstinate and the ignorant, but they do not end with them; and that lawyer was right who left all his money to the support of an asylum for fools and lunatics, saying that from such he got it, and to such he would bequeath it.”