I recently was elected as a new member of the Federation of Defense and Corporate Counsel (FDCC) and last week I attended my first annual meeting of that organization. One of the presentations was by two former senior military officers from Afterburner, a consulting company that teaches businesses and professionals how they can potentially use insights from the military to improve how they do business. Here are a few things I gleaned from the Afterburner presentation that could be helpful in defending class actions and other complex litigation:
- Clearly Define Your Mission: Often in litigation the end game is not clearly defined. Defense counsel and the client simply go through the motions of responding to the complaint, responding to discovery, etc., without defining what the real goal is, such as settling the case for under X dollars, or obtaining a favorable ruling on summary judgment without spending more than Y dollars on attorneys’ fees, or taking the case to trial and obtaining a defense verdict. Of course, sometimes it’s hard to determine what the end game is early in the case, and the mission can evolve or change, but there are plenty of cases where it should be possible to develop a more specific mission early on. The team of lawyers and paralegals (both outside and in-house) may benefit from a more clearly-defined mission established as early as reasonably possible. The team can then develop a plan to achieve the specific goal(s) and plan for how to deal with contingencies that could derail the plan or prevent achieving the goal(s).
- Think Thoroughly About the Potential Opposition Positions and Court’s Approaches: In military terminology this is identifying the “threats” to your “mission.” Set aside time to think thoroughly about what positions the other side might take and how you would respond to them. Include all team members in identifying the potential positions the opposition might take. This is typically done in litigation, but not always in a systematic way, and not always early on, or as a team. As a military analogy, think about the planning that must have gone into the raid on Osama Bin Laden’s compound. By thoroughly identifying and planning for all sorts of contingencies before the operation, every member of the team probably knew what to do if faced with making a difficult split-second decision. This type of approach is also important in preparing for what questions the court may have or how the court might look at an issue differently. One thing I find helpful in preparing for an important oral argument is setting aside time to read through the briefs again as if I were the judge, write out a list of all the difficult questions I can think of, and then write out proposed answers or bullet points that would form the basis of answers. I then typically run this document by others on the team and also sometimes run it by a lawyer who knows nothing about the case, asking them to identify both new questions that I have not come up with and weaknesses in proposed answers. It feels good (and impresses your client) when nearly every question you get from the court is one you have anticipated and prepared for, or a slight variation thereof.
- “Red Team” Your Proposed Strategy: When you have come up with a proposed strategy for the case or a portion thereof, present it to a few lawyers (outside and/or in-house counsel) who are not involved in your case. Encourage them to identify issues or potential strategies that might not have been considered. It is important that this be done in a “nameless” and “rankless” manner so that no one feels hesitant about criticizing an idea or strategy that may have been developed by their “boss” or someone more senior in the law firm or company, or by the client. This is sometimes done in litigation (such as when you do a moot court for an important argument), but often not in any systematic or regular way. The senior lawyer on the team needs to establish upfront the “nameless” and “rankless” setting in order for this to work well.
- Use Debriefing: After significant events in the course of litigation (such as an important deposition, oral argument, court decision, mediation, etc.), schedule time for a brief meeting with the litigation team to discuss what came up that was unanticipated but might have been anticipated, what could have been done better, and lessons learned for the future of the case or for future cases. Again, it is important that this be done in a “nameless” and “rankless” format. Junior lawyers should not hold back in expressing their thoughts for fear that they will offend a senior lawyer, and the lawyer who took the lead should try to be critical of his or her own work. The client should be involved in this as well and freely express his or her thoughts. The idea here is that while we all try to achieve perfection, no piece of work is perfect and only by doing this kind of debriefing can we get as close to possible to perfection. The military analogy that Afterburner gave for this was that the Blue Angels do this kind of debriefing after every show they put on, despite the fact that they have done thousands of them and to the ordinary observer every show looks near-perfect.