We recently sat down with Susan Bennett, Principal and Director at Sibenco Legal & Advisory and Exec Director of InfoGovANZ, to discuss the role and challenges of an in-house counsel as we move into another decade of digital disruption. Susan will be presenting on ‘A Guide to Litigation for In-House Counsel: Getting there Efficiently’ at our 13th Annual In-House Counsel Conference this March.
What do you see as some of the key trends and developments impacting in-house counsel right now?
With the increase in regulatory investigations and subsequent litigation, building in-house capability to improve cost efficiency and developing more in-house specialist expertise to manage regulatory investigations and disputes are at the forefront. This includes the increasing use of technology in-house to reduce costs both from a practice management perspective and in the use of litigation, from forensic technology tools for discovery and document production through to electronic court rooms.
Litigation support technology has been using machine learning (AI), for a number of years now. As employees and other parties use multiple ways to communicate, such as e-mail, texts and messaging on apps, there is a move toward more sophisticated analytic tools. This enables data from various sources to be collated together for more efficient evidence analysis, utilising impressive visual analytics. The traditional view of discovery – the documents in a company’s document/records management system and e-mails from relevant employee witnesses – is now outdated. There is now litigation support technology that enables analysis of documents/data from a variety of sources, including apps and shadow IT, which are now becoming a major issue in discovery.
What tips can you offer in-house counsel to respond to litigation in a cost-effective manner?
Most important is being litigation ready. That means having a repeatable and defensible plan in place. Planning is key, as well as a mind-set of continual improvement, asking: how can we do this better and are there different ways to do this, such as leveraging technology, to reduce costs?
Having systems and technology in place to identify and collect all relevant information and data will also save time and costs when it is done properly at the outset. Organisations with strong information governance will be at a significant advantage and more cost efficient than those that don’t. That is, knowing where your data is and having an up-to-date data map, understanding the systems being used, and the options available for searching and exporting relevant data will provide a significant reduction in litigation costs.
Also key is being able to quickly get on top of the critical documents and speaking with key witnesses as soon as possible. It doesn’t matter how big the case is, there is inevitably only a small number of critical documents. Coming to grips with the factual and legal issues quickly enables an experienced trial lawyer to make a much more accurate assessment of the strengths and weaknesses of a case. This, in turn, will enable those instructing you to make more informed decisions and help in managing expectations.
In urgent and/or large matters, it is important to keep sight of the end objectives while immersed in the depths of the forest so that you can get to your destination. Knowing what the destination is likely to be will help both those instructing you, as well as your planning, resourcing and decision-making along the way.
What strategies should an in-house counsel have in place to deal with litigation before a dispute ever arises?
It is important to have relationships or systems that encourage clients to come to you early when the dispute is on the horizon (proactive management) and not on top of them or you (reactive response). Efforts to build relationships that encourage early notification pay off because you don’t have to deal with a misstep or mistake that could have been avoided. Having early discussions may give you more options in resolving a potential dispute and/or next steps. More importantly is understanding what your client wants and being able to effectively convey what the options and consequences will be.
Again, being litigation ready and having a plan are key. This includes involving relevant stakeholders in the planning stage. You need to have strategies for how you will resource small, medium and large disputes and which internal or external resources you will use. This includes the options for engaging external law firms, litigation support providers, contractor lawyers and paralegals, and barristers, including the use of newly admitted barristers.
If you are thinking about building an internal capability, think about how you can make the business case and different ways in which you can efficiently use resources to support and sustain the business case and efficiencies.
What are some things in-house counsel can do to deal with the drain on internal resources during litigation?
Knowing the choices available to you and how you will resource different types of matters and utilise technology can significantly reduce the drain on internal resources. Apart from building internal capability within the in-house team, contract lawyers and paralegals are a great way to ease the burden internally while maintaining control over external legal costs. There are many companies, including law firm spin-offs, that now offer contract lawyers and paralegal services. Another very effective option is to utilise the services of newly admitted barristers, many of whom are experienced litigators and keen for the work and to develop relationships directly with clients. The use of technology, including discovery technology and robust internal systems to streamline resources and increase efficiencies in case preparation, can significantly reduce internal resources.
What’s a litigation mistake you see some in-house counsel make early on in the process when a problem that could lead to litigation first arises?
A key mistake is not ensuring all the relevant documents are preserved and that a legal/litigation hold is issued to prevent ongoing disposal of documents in the ordinary course of business. Of course, that requires all the relevant notifications to be made requiring all relevant information and data to be preserved, including to employees who may be witnesses as well as ensuring the preservation of employees’ data who leave. Sometimes, there may be a communication breakdown, for example, within IT and/or a change of personnel and relevant documents/data may be deleted. If this becomes an issue, there can be very serious consequences, including for lawyers professionally. Interlocutory disputes over missing discovery and/or documents/data that have been destroyed, such as deleted data, are very time consuming and very expensive. This is avoidable for organisations with robust information governance systems in place, including well-oiled processes for issuing and lifting of legal holds.
What’s a common misunderstanding some in-house counsel have related to legal project management for litigation?
That by having a project manager or implementing project management, processes will automatically improve and costs will reduce. In order for project management to deliver results, you need:
- A manager who is an ‘active driver’ to ensure it delivers on set objectives and outcomes;
- Clear objectives and outcomes from the outset that are continually monitored against weekly, monthly, or quarterly performance.
Are there any key rules or principles you think in-house counsel should keep in mind when going through litigation?
It is critical to understand what the needs and objectives of your client are and to be able to communicate effectively so everyone is on the same page and expectations are realistic. Lawyers need to bear in mind that they have an overriding duty to the court and also a duty of technology competence. This means if you don’t have the technology expertise to carry out discovery or document production, you need to engage a law firm with the technology expertise or litigation support service. One of the challenges for everyone involved in litigation is dealing with the uncertainty of a process, which is ultimately in the control of the court in the case of litigation, a regulator or commissioner in the case of a regulatory investigation, or the Royal Commission. Communication with clients – whether internal or external – is key to managing expectations and working toward a satisfactory conclusion.
Susan Bennett, Principal at Sibenco Legal & Advisory and Founder & Executive Director of Australian based think tank, Information Governance ANZ (InfoGovANZ). Susan works closely with corporate and government clients providing tailored legal and risk management solutions that meet client needs and strategic objectives. Prior to establishing Sibenco, for many years Susan led large litigation cases and inquiries involving the production of large volumes of documents/data. She draws on this experience to deliver responsive risk management solutions for effective Information and Data Governance and regulatory compliance, particularly in data privacy, cross border data protection and critical incident planning and response. You may connect with Susan by email [email protected] or on LinkedIn
For more information about Sibenco Legal & Advisory, visit the website: https://www.sibenco.com/