ACC Spring SymposiumMay 21, 2009

Litigating on a 2009 Budget

Prepared by:

Mark Habbinga, Esq.

Director of Discovery Solutions

(O) 214 \– 470-9142

(C) 214-893-2220

mhabbinga@epiqsystems.com

Agenda

• Introduction

• Corporate Counsel Survey

• Top Ten Corporate Counsel Strategies for Litigating on a 2009 Budget

• Top Five Things Law Firms are doing to “Feel Your Pain”

• Conclusion

Introduction – Your Humble Speaker

Mark Habbinga, Esq.

Director of Discovery Solutions

mhabbinga@epiqsystems.com

Office: 214-470-9142

Cell: 214-893-2220

Introduction – Epiq Systems

• IGlobal Reach and ExperienceLocal eDiscovery experts and multilingual staff bring a consistent approach to multinational matters.

Public CompanyEpiq Systems has been a publicly traded company since 1997.

Full financial information is available at WWW.EPIQSYSTEMS.COM.

Epiq is Safe Harbor certified and fully compliant with the security requirements for ITAR data.

Introduction – Epiq Systems

eDiscovery Solutions Full Life Cycle Litigation and electronic discovery services & software – Collections, Forensics, Processing, Hosting, Review Services, Data Repositories

Corporate Restructuring SolutionsChapter 11 case management, administration and consulting services

Bankruptcy SolutionsChapter 7 and Chapter 13 case management software and solutions

Class Action and Claims Solutions Technology based solutions for class action and mass litigation case management services

Corporate Counsel Survey

• Unofficial and Non Scientific Poll• 25 Corporate Counsel Polled (20 GCs)• Dallas and Ft Worth• Industries include: Banking,

Entertainment, Hotel, O&G, Outsourcing, Professional Services, Retail, Transportation

• Department sizes ranging from 2 staff members to 300 members of legal team

Litigating on 2009 Budget

Standard Questions Asked:1. Workload Increase? – 100%

2. Litigation Case Load Increase? – 50% (100% future)

3. Internal Department Budget Frozen/Cut? – 92%

4. Directed to Reduce Outside Counsel Budget? – 100%

5. Team Reductions? – 30%

6. Changes to OC Fee Arrangements? – 80%

7. Changes in OC? – 35% / 80% consider

Strategy #1:Bring It In House

• Keep More Legal Work In-House• Bleeding the Turnip / Whipping a Dying Horse• Headcount v. Outside Counsel Spend

– Build a profit center + plus incentive program– Virtual Members of your In-house Team– Secondment (Law Firm Associates on a Term

Basis)• Firm pays salary + company pays a bulk rate• Company pays salary only• First Pick of Larger Cases

Strategy #2: Take the Controls

• More Management of the Litigation Process– Clear Guidance from the Outset– Set Performance Metrics

• Ask for and monitor litigation budgets– Budget through Trial– Monthly and Annual budgeting – Litigation Phase budgeting

• More Detailed Billing– Running and annual case totals– Break down every person billing

• Limit number of attorneys / experience level

Strategy #3: Pick Your Fights – Early Case

Assessment• Manage the business peoples unreal

expectations• Determine in advance your Litigation Size

thresholds• Risk Benefit Analysis for each case – what

is your true exposure• Settle v. Blood in the Water Consideration• Standardize Pre-dispute DR / Offer

Limited Discovery

Strategy #4:Negotiate Multiple LF Rate

Options• Reduce Hourly Fees / Volume Discounts• Flat Fee (High Low Gamble)• Blended Rates (Easier to Budget, Seniority

Issues)• Performance Based Options

– Reduced Hourly plus Bonus– Hybrid – Reduced Hourly plus Contingency

• Loss Leader Approach – Routine work for free• No Long term contracts / Competition /MFN

Clauses

Strategy #5:Re-Evaluate Your Firm

Relationships• More Firms on the list

• Competitive Bid Larger cases / Case Types in bulk

• Boutiques and Smaller Firms

• Multiple Firms per case (Lead and Discovery Counsel)

• Secondment / Term Attorneys

• Virtual In-house Attorneys

Strategy #6: Drive the eDiscovery Process

• Select a Full Life Cycle Partner (Economies of Scale)• Engage your Partner Early

– Narrow Collections– Prioritize Your Discovery – Staged Discovery with eye on Settlement/MSJ

• Use an Advanced Non-Linear Review Platform – 50-73% Man Hour Savings– Tighter Timelines

• Consider Document Review Services – 50-75% Cheaper Per Hour

Elements of Electronic Discovery

Elements of Electronic Discovery

Elements of Electronic Discovery

C

Efficiency, PredictabilityRisk, Cost, Volume

Strategy #7:Require The Use of Technology

• Litigation Tracking Platforms• Automated Hold Processes• Advanced Review Platforms w/ Accelerators

that reduce the man hours needed• Shared Data Repositories = Cost Sharing• Communications

– More Teleconferences– Video Conferences in lieu of traveling

Strategy #8:Re-Consider Alternative Dispute

Resolution• Be Involved in Negotiating Contract Terms• Mediate Early and Often• Consider Hybrid Models

– Med/Arb– High/Low Expedited Arbitration

• Consider a Special Master– Discovery Master– Settlement Master– Special Trial Master

Strategy #9:Perform Post Mortems Every

time• Root Cause Analysis

– Examine Prelitigation Complaints– Reduced Litigation / Better Customer Services

Scores• Review Budget v. Actual Total• Review Case Benchmarks and Goals• Engage OC to help with more training of

employees – Brown Bag Lunches– CLE– Audits

Strategy #10:Improve Your Network

• Build a Network of Trusted Colleagues– Same & Different Industries

• Attend Corporate Counsel Organization Events– Association Of Corporate Counsel– TxGCF– DBA / FWBA Corporate Counsel Section– Texas Bar Association

• Professional Networking Communities– Linked- In– Texas Bar Circle Connections– Others

The View from the Outside (Counsel)

1. Proactively Talking to You2. Offer Multiple Litigation Solutions3. Offer and Use Outsourcing4. Put the Counsel Back Into Legal Counselor

– Complimentary Training / Brown Bag lunches– Neutral Assessments – Risk/Reward Analysis– Standing Update Calls– Absorbing Travel

5. Doing Routine Work for Free / Nominal Fee

Special Thanks To:

Whitaker, Chalk, Swindle & Sawyer LLP

Questions

Mark Habbinga, Esq. Director of Discovery Solutionsmhabbinga@epiqsystems.comOffice: 214-470-9142 Cell: 214-893-2220