Litigation from a client's perspective: top tips from the advocacy unit

On 21 March Murray Rosen QC, head of Herbert Smith's Advocacy Unit, together with support lawyers Pamela Kiesselbach and David Phillips, presented a webinar entitled 'Litigation from a client's perspective: top tips from the advocacy unit'. Murray, Pamela and David drew on a combined half century of knowledge gained from running disputes of all types to impart some practical advice for in-house lawyers. Here are their top ten tips:

1. Select your lawyers carefully. Look for experience in your industry sector as well as general disputes expertise. Ensure you are comfortable with the proposed legal team – ask to meet them all in person if necessary. 
2. Check that your external lawyers have matter management procedures in place.  Ask for cost estimates, insist on regular billing and periodic status updates, and make sure you understand reporting lines and areas of responsibility. 
3. Early case analysis is critical. If you can identify sources of evidence and collate key documents right at the outset, your external lawyers will be able to hit the ground running. 
4. Consider wider organisational issues. Make sure management are apprised of both the costs of the litigation and their likely level of involvement, and think about how you will handle PR issues. 
5. Take steps early to identify and preserve potentially relevant documents. Remember that the scope of relevant electronic documents can be very broad. You will ideally want your external lawyers to have a sophisticated in-house data management team and ensure that your own IT department are talking to that team from the outset. 
6. Do all you can to maintain legal privilege and avoid the creation of potentially unfavourable documents. Make sure that all relevant individuals within your organisation are aware of the risks of creating damaging and unprivileged documents, as well as how to mitigate those risks. 
7. Think at an early stage about factual and expert evidence. In-house lawyers can gain a head start by taking early proofs of factual evidence which helps in identifying not only likely witnesses, but also potential gaps in your evidence.  Make sure you are comfortable with your external lawyers' recommendations as to expert witnesses. 
8. Keep settlement in mind at all times. Periodically look at your dispute from an 'interests' rather than 'rights' based perspective. What is your business trying to achieve through the litigation? Formulate a dispute resolution strategy and ensure that you meet regularly with your external lawyers to review that strategy. 
9. If you do find yourself in trial, make sure you are properly prepared. Ensure that all witnesses are familiar with court etiquette and that a senior decision maker is always available, if not physically in court, then at the end of a telephone line.
10. Notwithstanding all of the above, the best dispute resolution strategy is to avoid a dispute in the first place wherever possible.  When entering transactions consider involving a disputes lawyer who can look at the proposed contractual arrangements with a 'disputes hat' on.