Any litigation involving any significant amount of money will normally have a legal team assigned to it to prosecute or defend the matter. The day of the single practitioner performing all tasks on a case are long over. Due to the complex nature of most litigation and the high hourly rate that an attorney must charge, it is vital to have a mix of people working on a case with a mix of skills and hourly rates. Put simply, there are too many tasks to perform, many of which should be performed by junior attorneys, paralegals or clerks rather than at the relatively high rate of a senior partner of the firm. Simple economic facts of life dictate that a team can operate more cheaply and efficiently than a sole practitioner IF certain procedures are implemented to avoid waste.
But the use of a team creates a set of issues that must be confronted by the typical client who normally hires a particular lawyer and then sees that lawyer seem to disappear behind a cloud of other persons working on the case. The billings also can become problematical, with persons the client has never met suddenly performing work on the case which may appear duplicative or confusing to the client.
This article shall discuss the rationale for use of teams, the dynamics of how they work, and suggest some common sense methods for the client to interact with a team without incurring increased expense. It shall be assumed that the reader has already read the article on American Litigation.
Advantages of a Team
1. Cost and Expertise. Most work in litigation does not require the most expensive legal talent. A lawyer is trained to strategize, appear in court, conduct depositions and the like. Production of documents, creation of file organization, investigation of facts or research of law can often be handled by other professionals in a law office at a much lower rate and who actually may have greater expertise in a particular skill. Most attorneys, after ten years of practicing law, have not drafted interrogatories more than two or three times a year while a trained paralegal will work on interrogatories a dozen times a month. Further, certain paralegals or junior attorneys are trained in particular areas of the law and can provide that expertise in the larger context of a case. For example, some attorneys engage in much work on motions to dismiss and demurrers and though only ten years out of law school, will have greater expertise in that skill set than an attorney who seldom argues law and motion and may have two dozen years under his or her belt. There are exceptions-a particular issue in normally mundane discovery may require lead counsel with particular experienced expertise due to its role in the case-but normally much of the work in a typical case can and should be performed by persons at rates lower than the lead attorney on the case.
A case involving breach of contract may also involve copyright or patent law in which case an attorney who specializes in that area should form part of the team. By using a team, costs are saved and particular expertise applied to an area of the case that may be important but only one part of the case.
2. Ability to Gear Up Quickly and Covering for Absent Members. It is sadly common in brutal high stakes litigation for opposing counsel to engage in voluminous pleadings and discovery, often served with minimum time to respond, indeed often served on late Friday afternoon. To suddenly receive two hundred pages of pleadings requiring analysis and response due in a few days can be a crushing blow to a single lawyer. To a team, especially one that can expand or contract at need, it is annoying but entirely doable and often the team can reciprocate with their own type of discovery. Additionally, if one member of the team is ill or on vacation, or out of the office engaged in a trial or arbitration, there are others already briefed and capable of handling emergencies and the moves of the opposing counsel.
3. Different View Points and “Two Heads are Better Than One.” It is almost always useful to have different minds analyze both strategy and tactics in any case and to work together to outthink the opponent. Each attorney thinks in a different way and paralegals also bring a unique point of view. The strategy sessions in which the entire team discusses next steps and best tactics can be both fascinating…and quite useful to outthink a staid opponent.
4. Trial Support. Any good litigator knows the value of support staff both at the counsel table and back at the office preparing witnesses to testify the next day, briefing matters brought up at trial or by the Judge, investigating new facts discovered, organizing documents, etc. A common rule is that it takes five hours back at the office working to prepare for one hour in the court room or arbitration. A single attorney, facing a team who is working both in the court room and back at the office, is at a severe disadvantage. While night work by trial counsel is still probably required to prepare for the next day, a team at the office allows that night work to end before an hour that is so late that trial counsel becomes exhausted.
5. Two Places At Once. More and more trials occur in remote locales as do depositions and court appearances. To have the team back at the office working the case while lead counsel is traveling for the case is invaluable and quite often two or more simultaneous areas of work can be accomplished jointly, saving time before trial and putting the opponents at a severe disadvantage.
6. Matching the Opponents. One elderly litigator put it well to the writer. “In a fight, if you are outnumbered, you usually lose. If I am going to a battle field with two soldiers and they have two dozen, my future is a bit bleak.” While the movies may portray the lone warrior succeeding against a large firm, the simple fact of most cases is that a large team can bring to bear a great deal more expertise and work product than a single lawyer and that disadvantage can be extremely damaging to your chances for success.
7. Differing Personalities with Differing Skill Sets. Witnesses, judges and arbitrators, not to mention opposing counsel, often interact better with a particular type of personality. While the “good cop, bad cop” methodology of the movies is a bit extreme, there is an advantage of having numerous personalities available to interact with various parties in a case. In one case, a witness refused to talk to the lead attorney but became fond of the law clerk who was assisting on a break from his law school and provided testimony that otherwise would have been unavailable.
8. The Enjoyment of a Well Run Team. When a legal team is well honed to the tasks at hand and mutually supportive, it creates an exciting and dynamic synergy that is both extremely effective and great fun for the participants. Anyone who has gone through a prolonged trial, arbitration or negotiation working with a team soon realizes that the shared experience and excitement forms bonds that simply make the work far more enjoyable and productive. That, in turn, leads to better work done with cheerfulness. Weekends preparing for trial can be drudgery…or enjoyable if the stress of trial preparation is shared with an enthusiastic and dispersed team. Once, during a prolonged preparation for an arbitration, one of the paralegals said to the writer that she felt sorry for the sole practitioner we were facing. “He must be alone in his office, staring at piles of documents, with no one to bounce ideas off of. Poor soul.”
Dangers of a Team
1. Costs of Communication Within the Team. Teams can have disadvantages in terms of cost. The team has to communicate internally and those communications can increase the billings. Without such communications, the team will not be properly guided or may engage in duplicative work. The client who examines his or her monthly bill and sees hours expended on “meetings of team” can become irate and picture the team sitting around drinking beer and chatting about the case…then billing the client. The team must develop a method to achieve efficient and effective communication which saves the client money and does not cost more than it is worth. The client must be educated that those team meetings, especially ones discussing strategy, may be the best money spent on the entire case. The team must be taught that only important communications may be billed to the client or the costs will interfere with the cost benefit of the case as a whole.
2. Lack of Effective Leadership. It is vital that the team is internally organized such that one, or at most two attorneys lead the team from an overall strategic perspective. The danger of any “committee” undertaking is lack of firm and clear direction, which can exist for a litigation team. It is therefore critical that a “lead attorney” be created and he or she is responsible for overall direction of the team and acts as the contact point for the client and all team members when a decision must be made. The lead attorney is the key driver of the team and must understand that vital role.
3. Politics Within the Team. A common danger is that the disagreements that can often develop when any group is working within a stress environment may alter the dynamics of the team. A paralegal or attorney may not get along with another or push an agenda that the lead counsel does not like. A team member may engage in passive resistance based on such unprofessional reactions. Lead counsel must be wary to avoid such activities and must concentrate on ensuring that politics do not interfere with service to the client.
4. Lack of Effective Communication. While too many meetings can be too expensive, failure to communicate effectively can result in missed deadlines or duplicative effort. Here, the lead attorney must be charged with running the team correctly and the “buck must stop” at his or her desk. The team assists the attorney…but the attorney remains in overall responsibility for the case.
The Team and the Client
Most clients are used to teams in their business or daily lives. Indeed, it is how most of us do most things in today’s society. But most clients are unaware of the various roles of personnel in a law office (senior attorneys, junior attorneys, specialist attorneys, of counsel, paralegals, clerks, administrative assistants) or how the team is created and tasks divided. Lead counsel should take the time to educate the client to the use and purpose of the team and the people in it. Most clients, realizing that the hourly rate of the lead attorney will be supplanted often with the less costly rates of the other members of the team, are delighted and more than once a client has avoided speaking to lead counsel, relaying all information to less expensive team members.
Normally, lead counsel engages in strategy and direction of the team, perhaps some discovery and trial or arbitration lead role. Other counsel handle many of the less key court or arbitration appearances, law and motion, and most of the discovery. Paralegals engage in most of the written discovery, research, fact investigation, and coordination of the trial or arbitration deadlines and dates. Clerks assist the other members of the team and of counsel can fill some or all of the functions above. Specialist counsel come in to concentrate on a particular aspect of the case. For example, a specialist counsel can be brought in to handle the hazardous waste aspect of a real estate transaction litigation which might have involved a waste cleanup that was not done correctly, etc.
The client will often not meet all members of a team but should be made to realize their critical roles and feel comfortable that he or she does know lead people on the team. Above all, the lead attorney must communicate effectively with the client so that the client has a good idea of the movement of the case, the underlying strategies, and the effect of various developments.
A law professor put it well: “We don’t teach people how to practice law in our school. We teach you how to study law and do appellate law. To learn how to practice law…go out and practice law.”
They also do not teach team dynamics and the appropriate gearing up and use of a team of trained professionals in law school or, indeed, in most firms. But the proper use of a team can not only outwork but can outperform out think and outwit a less well staffed or an unorganized opponent...and do so at less cost and with much more efficient effort.