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Pros and cons of litigation oversight by non-litigators

Should transaction-oriented business lawyers, generalists who mostly handle contracts and the range of legal issues that arise for a business unit, also handle the litigation that arises for the client? Most law departments answer no, at least for cases other than the most routine and lowest risk.

Litigation is a specialty and a very expensive one, sometimes played for high stakes. An anti-trust counselor, or indeed any other non-litigation lawyer, may be a very poor manager of litigation. Even worse is a situation where the lawyer’s earlier efforts led to the lawsuit, since they could hardly remain objective during the litigation. Moreover, at a time when discovery of electronically stored information has become so expensive and so fraught with risks, it is better to have a person overseeing that aspect of litigation who is familiar with it.

Then too, at irregular intervals, litigation can consume huge blocks of time and often requires travel. The urgency of trial can drive out the importance of supporting a business unit.

It is true that commercial lawyers understand best the business of the client and the relative importance of pursuing a lawsuit. The commercial lawyer is best positioned to arrive at a settlement figure, for example. Additionally, every lawsuit teaches those involved how to avoid the problem or lessen similar risks in the future. If commercial lawyers also have to litigate, they will know better how to act differently in the future.

That said, it is better for commercial lawyers to devote their full attention to promoting commercial transactions, and not be distracted by the periodic ructions of litigation. Any litigation lawyer will still have to draw upon the knowledge of the commercial lawyers and in turn will pass back to them advice for how to avoid a recurrence of the litigation.

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One response to “Pros and cons of litigation oversight by non-litigators”

  1. Although — historically — roughly 9 out of 10 lawsuits are settled or dismissed, the ones that actually proceed to trial require real trial skills, not business litigator skills (which predominantly do not equate with pre-litigation maneuvering and discovery skills). One approach for a legal department devoid of experienced trial lawyers is to outsource top level oversight to a trial lawyer on a contract basis (perhaps, a retired trial specialist whose career experiences are commensurate with the strategic level of the suit).