April 2009 • Vol. 29 No. 4 | An E-Publication of the Los Angeles County Bar Association

Gimme 5: What Every Lawyer Should Know about Roles That In-House Counsel Can Play in Trial Preparation and at Trial

By Marcellus A. McRae, partner in the Los Angeles office of Gibson, Dunn & Crutcher LLP. His trial, litigation, and white-collar criminal defense practices focus on a wide variety of business disputes, internal investigations, and criminal prosecutions. He can be reached at mmcrae@gibsondunn.com.

Much has been written about the critical role of trial counsel, witnesses, and jury consultants at trial. Equal attention should be paid to the various roles that in-house lawyers can perform both before and during the trial, and both inside and outside the courtroom. Using aeronautical vernacular, in-house lawyers’ participation in the trial process can range from being passengers to air-traffic controllers to co-pilots. Below are five thoughts regarding ways in which in-house counsel can play significant and active roles at trial.

1. Enforcing the standards, expectations, and culture of the company.
For many companies, the risks inherent in high stakes litigation occur at various levels and in various arenas including, but not limited to, adverse publicity, negative market reaction, and the specter of additional derivative/class action litigation. A critical dimension in the trial process is the perception battle. Does the company have a positive image? If so, why? Are the trial themes, witnesses, and exhibits being presented in a manner that is credible, persuasive, and consistent with the company’s core values and image? While it is incumbent on outside counsel to internalize the culture and standards of the company, there is perhaps no better spokesperson for and enforcer of these values than in-house counsel, who can assist trial counsel in viewing all phases of the trial through this all-important prism.

It is becoming more common for in-house counsel to act as full-fledged members of the trial team who do everything from helping with jury selecting, splitting the opening statement and closing argument, and examining witnesses.

The impetus for these partnerships can include, among other things, the desire to save attorney fees, the need to train in-house counsel, and the realization that adding in-house counsel allows the company to field the best trial team. Regardless of the motivation, full-scale engagement of in-house counsel in the trial process will inexorably deepen his or her focus and investment in the outcome. It will also create more opportunities for in-house counsel to ensure that the company’s unique cultural stamp is placed on the trial.

2. Partnering with retained counsel to report on the events at trial and to manage expectations regarding the outcome.
A necessary and important part of the trial process is the daily downloading of events. Trial counsel will, of course, play a central role in this process by delivering the view from the trenches. However, in-house counsel will invariably have a more refined and nuanced filter through which to determine (i) the key developments in the trial, (ii) the audience(s) that must receive the information and the persons within the company who are most capable of addressing these developments, (iii) the most effective means and tone to convey this information, and (iv) the best words to be used to communicate the progression of the trial from the company’s risk tolerance perspective. It is also not uncommon for events to occur at trial (sometimes rapidly) that can significantly impact the company’s expectations regarding the trial’s outcome. In most instances, in-house counsel will have more in-depth and real-time knowledge of what the company needs to know to explain to key decision makers why there might be a need to depart from a trial strategy or to recalibrate those expectations.

3. Monitoring the reaction of the judge and the jury to the events at trial (or as Scottish poet Robert Burns wrote, “Oh wad some power the giftie gie us To see oursel’s as others see us!”).
All trial lawyers can benefit from having someone else “read the room” throughout the trial. With every witness, document, and moment, a series of questions emerge, such as:

  • How did the jury react to what the company regarded as its best evidence?
  • How is the jury responding to trial counsel?
  • Does the jury appear bored or angry with either or both parties?
  • Is the judge’s reaction to the company’s case and its counsel a positive, neutral, or negative factor?
  • Who or what most captures the jury’s attention and why?
  • Is redirect examination necessary in a particular instance?
  • Was the cross-examination too cross?
  • Have we reached a point of overkill or diminishing returns with a particular theme, document, or witness?
  • Was the testimony of the expert or lay witness intelligible?
  • Are we hitting and reinforcing our trial themes?
  • What evidentiary and thematic gaps are appearing in our case as we come to the close of evidence?
  • What issues will we need to re-emphasize in closing argument?

Trial counsel will, of course, do his or her best to gauge these issues, but no one will have a better viewing opportunity than in-house counsel, who will also be able to make insightful recommendations regarding any necessary adjustments to these audiences. In-house counsel’s extra pair of eyes and ears can serve as the litmus test for whether the calls for a change in strategy, points of emphasis, exhibits, witnesses, and the like have been answered.

If they can avoid the pitfalls of advocacy distortion, in-house counsel can also function as mock jurors by assisting trial counsel in critically assessing, deconstructing, and reconstructing the company’s case. Mock jury exercises can be a tremendously helpful means of identifying and honing trial themes and overall case strategy. Just as honest, objective feedback was helpful before the trial, it is even more crucial during the trial. In many instances, in-house counsel will be heavily involved in the mock jury exercises and can therefore expand on or modify recommendations arising from those exercises to meet the changing landscape at trial.

4. Assisting with the preparation of witnesses who are waiting in the wings and with other predictable and not-so-predictable tasks that can arise at trial.
Unfortunately, the pace at which witnesses will testify at trial can be rather unpredictable. Sometimes, they will pass each other at lightning speed as they come and go from the witness stand; at other times, they will wait for what appears to be an eternity before taking the stand. In complex and protracted trials, considerable time can elapse between a witness’s most recent preparation session and the actual testimony. In the meantime, witnesses can become preoccupied with other tasks and quickly forget the subtleties and details of the case. To prevent this from occurring, deeply engaged in-house counsel can keep the witnesses sharp and focused by preparing them in the morning or the evening and even during extended breaks. Allowing trial counsel to telescope focus to the witness on the stand is critical and, hopefully, will yield more impactful testimony.

In addition, all trials have unpredictable events and fire drills, such as sudden needs for impeachment or rebuttal evidence, and witness unavailability. Given the tremendous range of the issues on which trial counsel must devote immediate attention and the round-the-clock nature of the daily “morning preparation-in trial-nightly preparation” routine, in-house counsel can play a critical role in helping to address such issues. In addition, there are numerous details in a trial that require constant attention, including maintaining a list of items that were admitted into evidence, coordinating witnesses, receiving evidence subpoenaed for trial, maintaining a journal of events at trial, and developing a closing argument outline. These are merely some of the numerous ways in which in-house counsel can partner with trial counsel in a substantive division of labor that permits greater focus (and, hopefully, superior results) on other tasks.

5. Taking ownership of settlement discussions that can arise at trial.
In some instances, the start of trial is the best catalyst for settlement discussions. However, the opportunity to settle can arise at almost any time, including as the parties approach the proverbial court house steps, after the opening statement, before a key witness testifies, or while the jury is deliberating. To the extent that a settlement dialogue commences before the close of evidence, it is imperative that trial counsel stay focused on winning the trial. The ability to split forces between a trial team and a settlement team is a valuable asset in the ongoing effort to focus resources. And, quite frankly, who better than in-house counsel to head the settlement team? In-house counsel generally will be in the best position to (i) assess the company’s ability to make and respond to offers including the identification of true deal breakers and tolerable concessions, and (ii) structure a deal consistent with the company’s past practices and expectations, should these discussions prove to be fruitful.

Find past Gimme 5 articles here.

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