National complex litigation cases require engaging local counsel in multiple jurisdictions. As national counsel, you may view this as an administrative chore. But, if you are retaining local counsel only to “check the box,” you are not getting full value for your client’s money and missing out on an often-underutilized resource. While any good lawyer can research law and procedure in most jurisdictions, there is no substitute for having boots on the ground when it comes to understanding the local culture, relationships, and norms of practice, particularly if your case is in a specialized industry. This article explores ways to optimize your use of local counsel and to select the best local attorneys to fit your team.
Highest and Best Use
Filing services and pro hac sponsorships are table stakes when hiring local counsel. In critical jurisdictions, billable dollars should also buy you substantive, tactical, and strategic insights. Critical jurisdictions might include venues with a particularly high volume of cases in the relevant area or locations where key parties are located. Don’t just hire a name to put on your papers; leverage the specific experience and skills of the local firm to establish a strategic partnership for that jurisdiction.
Tapping into Relationships and Local Culture
Every jurisdiction has its own legal culture, and some can be harder to break into than others. Having a partner immersed in the local community can be invaluable to a foreign firm, not just to leverage relationships and credibility but also to navigate the inevitable quirks specific to that jurisdiction.
Local counsel can pull you into what is often a small circle of repeat players, helping you to read and form relationships with other counsel. Your local may have institutional, if not personal, knowledge of a particular plaintiff’s firm’s typical discovery tactics, credibility, propensity to try cases, and approach to settlement negotiations. And the opposing attorneys may have not-so-secret idiosyncrasies that you can potentially exploit. Sometimes your local can offer insight into how the plaintiff’s counsel views your client in relation to other defendants, helping you to decide how aggressively to mount your defense and the most opportune time to attempt resolution. They can often advise as to what level of cooperation you can expect from your co-defendants. Indeed, their relationships with other defense counsel may gain you cooperation that you wouldn’t otherwise enjoy as an unknown foreigner.
Your local can help you not only establish credibility with the judiciary but gain valuable insight into the best way to present issues to particular judges. Does your judge tend to be swayed by intellectual or emotional appeals? Is he likely to dig into a knotty issue and make a difficult decision or defer? Does she fear reversal? What’s his overall temperament? Impulsive? Analytical? Thoughtful? Patient? Such advice might change your motion and trial strategy and ultimately tip the balance.
Finally, local quirks are often a mystery to foreign firms. For example, unwritten local conventions may substantially differ from the published civil rules. There may be avoidable procedural tricks deployed by plaintiffs’ counsel that can severely hamper your discovery efforts or unduly delay your path to summary judgment. For example, you will need to know what qualifies as “meeting and conferring” and how serious that requirement is weighed in your jurisdiction. (In some states, motions can be lost on that basis alone.) When to extend professional courtesy and when to take a hard line often depend on the expectations of the judiciary. At trial, you may see a potential juror as a buttoned-down accountant, but perhaps they live in an area of town that tells a different story.
Tuning into Jurisdictional Trends
Strong local counsel will be invested in staying current on jurisdictional trends, a key component to meaningful case evaluation. Trends might include the latest tactics and arguments being tested by the plaintiff’s bar in a particular industry and the receptivity of the local judiciary. Locals may also be able to share keys to the latest defense verdicts or significant pre-trial wins or losses that shaped a recent trial or forced a settlement. In some cases, they may even be able to share what the local defense bar has been seeing in settlement expectations from particular plaintiff’s firms. Even old dogs can learn new tricks and you should know the latest moves before you’re blindsided.
Adding to Substantive Strategy
National counsel is the boss of the battle plan but should not be afraid to tweak strategy as circumstances dictate. Just as national counsel have the 50,000-foot view of multi-district litigation, local counsel are expert in the day-to-day of their jurisdiction. For example, anyone can do online research, but that does not always show you the underlying story of how the law developed and why. At a minimum, your local likely has a good bank of previous motions across many topics, which have evolved over time not only as the law has developed but as arguments are tested with varying degrees of success. And maybe there are local experts who would play better at trial than your national favorites. The local lens may not be determinative, but it is a perspective that is too often ignored.
Finding the Right Fit
Most of us can fairly easily acquire a list of recommended attorneys in any jurisdiction, whether it be through a list-serve request, informal word of mouth or on-line research.But a good lawyer is not necessarily the right lawyer when it comes to partnering on a case. Like any other hire, the measure of success is often in the fit.
Similar to most relationships, the foundation of any good local counsel relationship is communication. Find someone who welcomes a direct discussion of expectations, if not initiates it. This should include not only rates and billing practices, but what you envision your respective roles to be. Is this person accustomed to simply following orders or will they take ownership and responsibility for deadlines and decisions? Who will lead the case investigation and discovery? Who will appear at what types of hearings? What level of discretion will you afford to your local in reaching discovery and other agreements with other counsel? Help them to find the balance between keeping you informed and not overwhelming you with minutia.
Be the Client
Hire a local counsel who treats you like a client. You should be timely notified of significant case developments and deadlines with proactive recommendations as to the next steps as appropriate. If you have communicated well, you will have a shared understanding of what is “timely” and”significant.” If not, refine your communications.
Look for someone with an appetite to learn not only your practices and values but also the business and products of your client, as applicable. If you have repeat litigation in a particular jurisdiction, plan to invest in training your local as you would a new associate and expect your investment to pay off over time. You will want to educate them as to potential minefields and issues to avoid given your broader perspective and exposure.
Ultimately, your local’s number one job should be to advance your case while making you look good to your client. This means being proactive yet deferential, owning oversights, and avoiding surprises.
Make Sure They Know the Lines
During your initial discussions, get a sense of your candidate’s malleability to adapt to your practices and balance that against their confidence to push back if you are crossing local lines (and their ability to know the difference). You need someone capable of championing your case while respecting boundaries based on the differentiation of your roles and your relationship with the client. You want someone who will take ownership and partner with you on the case; you do not want someone who is looking to replace you. This can be a difficult line. Look for an attitude of respect and deference toward you and your role, with the drive to add value whenever possible.
I have long subscribed to the theory that you get what you expect from people. Expect your local counsel to act merely as an administrative assistant and you will get precisely that—a capable assistant at an attorney’s billable rate. But if you welcome them onto your team, expect them to own the case as much as you do, and listen to and respect their guidance . . . now you have a true value-added partner.