Optimizing high stakes commercial claims for success

In this article, I share four over-arching themes that are constants in successful claims: the calibre of the legal team, clarity on goals and strategy, alignment of stakeholders and communication. In my role as chief investment officer for a litigation funder, I am constantly evaluating large scale litigation to determine its prospects for success. No surprise then, that I am preoccupied with everything that contributes to winning litigation.

Theme #1: The team

The calibre of the team is most often the determining factor for any venture. Fortunately, it’s a variable over which a litigant has significant control. Those who invest time to find the right lawyers and who pay for the best, benefit from significant return.

How does one select the best team? 

The needs of each case differ. The right team may be from a fully resourced firm, or multiple firms handling different elements of a case or a single highly skilled advocate. Ultimately, cases are won by the talent and energy of specific lawyers, not law firms.

To identify the right lawyers, start with track records and expertise. Look up reported trial decisions. Ask counsel to tell you about their wins. 

Consider industry awards, league tables and market recognition. They aren’t the be-all and end-all, but they provide helpful data points.

Seek out testimonials and recommendations. Asking trusted colleagues, mentors and business partners will help generate a short-list. Critically, ask for input from a lawyer’s former clients. These people are the leading experts in answering “how good is this counsel when things take an unexpected turn?”

Beyond external validations, there are intangible characteristics common across winning counsel. They show: 

• Passion for the case. Understanding that there’s a wrong to be righted. 
• Creativity. Willingness to challenge the status quo, with a focus on outcome rather than the established path or process. 
• Energy. Litigation can be draining. Enthusiasm for the venture is essential. Successful lawyers I’ve observed typically appear to be enjoying themselves.

And remember, if a legal team isn’t setting your case up for success, you are not stuck with them. There are any number of occasions where a change of counsel is warranted and necessary for success. 

Theme #2: Goal and strategy

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.

Clarity on the goal and strategy for a case is critical.  Is the objective a damages award, a business-critical precedent, an ongoing licensing arrangement, creating a lot of noise and attention, or a quiet settlement? Claimant and counsel need to be on the same page about where they are going and what is required to get there. 

Smart litigants document the goals of their litigation. The statement of claim will not do it all.

Take for example timing related objectives. These are a top interest for most claimants. While external factors will dictate some of the pace of litigation, those claimants and counsel who commit to a timebound resolution will focus on this goal whenever considering strategy.

Another goal that isn’t written down in a pleading is maintaining an effective budget. Excellent counsel know the importance of a litigation budget, and work to manage the issue. A disciplined budget need not be small; successful claimants understand that complex disputes demand a sizable investment.  But clarity and attention to a project budget is key to any successful claim.  

Informed by clear goals, the strategy and tactics for a case become more refined. And these will evolve and respond to the dynamics of the dispute. Mike Tyson teaches: “[e]veryone has a plan until they get punched in the mouth.” So too in successful litigation, where strategy will be recalibrated as needed to achieve the parties’ objectives.

Theme #3: Alignment

Alignment of the stakeholders is an important lever for success. Conversely, where friction, animosity, or apathy are present, a claim suffers. 

This is not to say there should be groupthink within a litigation team. Contrasting opinions, different experiences and creative thinking animate important strategy debates. At centre, however, there needs to be a shared understanding that all parties are invested in achieving success. In the best-case scenario, client and counsel are aligned on the core principles at issue in a claim. 

Formal alignment of interests is also important. This can be achieved through “on-risk” fee arrangements. Success fees, contingency agreements, and other customized incentives help to keep clients and counsel on the same page. Likewise, capped budgets or phased-fee arrangement encourage alignment on strategic decision making. The "need to haves" versus "nice to haves" receive greater attention.

Formal alignment of interests and alignment of principles reinforce a sense of urgency in moving a case to resolution, critical given that the legal system presents constant instances of delay.

Theme #4: Communication

Effective communication fuels the trajectory of a case. It ensures that everyone has the information necessary to make decisions and understand how that information can impact outcome. Every case will have unexpected and unwelcome developments. Timely communication enables the team to absorb those developments and continue towards the agreed goal.

The best counsel present clear and reasoned options to their clients, and they listen carefully to input and feedback. Strong communication minimizes misunderstandings and reinforces alignment. It helps ensure that everyone is informed and invested and allows for idea exchanges and refinement of strategy. In short, good communication facilitates all other aspects that power a successful case. 

Given that brevity is often a mark of good communication, I will say no more on this.

All claims are unique and will call for their own consideration. My experience, however, is that successful cases all include elements of what is discussed above. It is well worth a claimant’s time to consider these elements carefully when gearing up for a major litigation. 

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.