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Trial Counsel Best Practices: How to Select Local Counsel

Enrico Schaefer - September 30, 2019 - Complex Litigation

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[Detroit, MI]  Working as a litigation team can be the difference between success and failure, winning and losing your case.  Achieving client goals should always be the focus on litigation strategy and execution.   One early challenge in setting up your litigation team is finding local counsel.

“Finding the right local attorney to act as local counsel is one of the most important decisions you will make in putting your litigation team together.  Do you need a local attorney who knows the judge, is familiar with the court or has expertise in the areas of law being litigated?  Will the local attorney be handling substantive matters, or just procedural issues?  These are all key issues which should guide you as you select an attorney who will assist you in your litigation.” (Enrico Schaefer, Trial Attorney, Traverse Legal, PLC).

If you need trial counsel, or a local attorney who knows how to work as a team, contact us today.  We act as local counsel in Austin, Texas, Detroit, Michigan, Los Angeles, California, Traverse City Michigan.  We act as lead trial counsel across all 50 states, and globally for clients just like you on litigation matters just like yours.

Enrico Schaefer:        Welcome to the Tech Law podcast. My name is trial attorney, Enrico Schaefer. Today, I want to talk a little bit about how to deal with co-counsel or local counsel in complex litigation. More often than not, a client is going to hire the best attorney for the job. The best attorney for the job might not be located in the venue where the trial is pending. This is especially true in federal litigation.

We Are the Experts, Local Counsel Is Retained To Assist

Most of my litigation is across the world, and only a small percentage of it is actually in my home state. We have had cases in the Federal Court, Souther District in Miami including a final judgment and a verdict. It was an Anti-cyber-squatting Consumer Protection Act case. We also recently handled a case in Tampa in the Federal District of court in Tampa, Florida. That one was interesting in that we had to come up to speed at the very last possible moment before trial. Most trial attorneys are really hesitant about stepping into a case at the last minute because they’ve got to come up to speed.  We have cases and local counsel or co-counsel in cases that are pending in Supreme Court of New York, County of Nassau. We are lead counsel in arbitration in New York and in the state court action in New York.  We are also acting as lead counsel n New Zealand, in Vancouver, Canada, in the Northern District Federal District Court, located in Chicago, Illinois. All these cases and other ones that we are involved in require us to work with other law firms and other trial attorney.

This can be an extremely challenging thing for many attorneys. Egos get brought to the table. Dividing and conquering is obviously critical, but can sometimes be a challenge. Sometimes the law firms have different agendas. Sometimes the law firms and lawyers have different views of the case.

Who is the Lead Trial Attorney?

As you know from my prior podcasts, I’m a firm believer that someone has got to be in charge. There has to be one captain of the ship; one lead trial counsel. Litigation by collaboration does not work. Decisions have to be made quickly. Those decisions have to be executed while you can discuss the proper course.

The day to day activities need to happen in real time, and they need to be fast. They need to be executed with a whole lot of pushback or debate. If someone onboard feels like they don’t have to do something because they didn’t have a say that doesn’t work very well.

If there’s one captain of the ship, and the captain says what’s going to happen, everyone jumps. That is a much better model for litigation. But having said that, working with local counsel or co-counsel on a different venue requires a lot of finesse. You need to understand who it is that you’re working with and hopefully, you have some choice in the matter, and you can pick someone that you’re familiar with.

Devise a Plan.  Assign Roles and Tasks. Stick to the Plan.

An attorney who you have no problem working with in the case. Dividing and conquering. You’re going to try and avoid double billing. You’re going to have a captain in charge. Typically, we’re the captain in charge and local counsel is executing the strategy that we’ve helped devise, but here are the main points.

Four main points that I think really help in these types of working relationships.

  1. The first is that teamwork is key. You have to be able to manage the expectations of the client, but manage the expectations between yourself and the other attorneys.
  2. The second point is that you have to divide and conquer tasks. There has to be a battle plan. It has to be executed at a task category and task level.  This means that a task category could be complete discovery responses, but then there might be 10 or 20 tasks underneath that task category. Those are assigned to specific people. That’s the lane that needs to be traveled in by the person executing that task. If you have everyone trying to do everything or the division of responsibility is fluffy chances are the ball is not going to move forward. If it does, it’s not going to be in a strategic way.
  3. The third thing is I want to talk about the power of a case management online cloud-based case management system. We use www.basecamphq.com as our complete case management system which is completely transparent to the client. Every task category. Every task, every document, every discussion goes into Basecamp for the client to see and for co-counsel or local counsel to see. While this may seem like it is inviting problems because clients and/or co-counsel are going to be micro-managing, or pushing back on certain discussion threads, or that transparency is going to somehow inhibit the progress of the case like so many things in tech, the opposite turns out to be true.
  4. Transparency with the client and co-counsel makes sure that everyone is on the same page. It creates a level of communication and task management that you simply cannot achieve otherwise. Giving the client complete access to all of this makes sure that the client is educated, onboard, and that their expectations are set. If there’s a problem that reveals itself in the transparency and the open communication it happens in real time at the moment where things can be managed or fixed rather than little problems becoming big problems because no one knew or understood what was happening months or years later. The question becomes, “Why?” If that wasn’t explained in real time there’s going to be something that people can debate.

Schedule Regular Team Phone Calls

The other thing I want to talk about is the standing call. In order to get this teamwork, in order to divide and conquer having a standing call, a weekly or biweekly call with co-counsel or local counsel can really make the difference. You need to share information. You need to make sure that everyone is on the same page.

That means that you have to all understand the strategy. What is the goal? What does the end zone look like? You can’t do that nearly as well by email or Basecamp, or otherwise then you can in a phone call. What you want to do with these standing calls is not only check on the tasks that you assigned in the previous call. Make sure everyone is accountable for the things they said they were going to get done, but also, to reinforce context and strategy.

If everyone understands the context of why they’re doing these tasks, of how they are supposed to approach a given task then things are going to flow much better. There’s going to be much more strategic cohesiveness from the smallest task on up to the biggest task.

These standing calls between your team members on a weekly or biweekly basis, I think, are critical. My name is trial attorney, Enrico Schaefer. Today we’ve been talking about working with local counsel and co-counsel. We’ve talked about teamwork. Dividing and conquering. The power of collaboration and transparency. The standing call, and we will see you next time.

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