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Jul 11 Attorney Articles

Three Points for Planning and Managing Lengthy Complex Litigation

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After twelve years of litigation, six months of trial, and nearly two years of post-trial work and an appeal, my client and I finally enjoyed the hard-fought victory and conclusion of the lawsuit brought against it.  (O.C.W.D. v. MAG Aerospace, Inc., et al., 2017 WL 2375507 (June 1, 2017).)  That’s right, it took more than a decade of protracted litigation, followed by a long-drawn-out trial, and more litigation before reaching a conclusion.  Needless to say, the case represented a considerable investment of time, energy and constant focus through the matter’s conclusion.

That sustained focus is required for today’s complex and class cases, and requires prior planning.  (To illustrate, I litigated the Hale v. Sharp Healthcare (232 Cal.App.4th 50) lawsuit for seven years before defeating it; and spent six years before defeating Chevreuil, et al., vs. Dos Stars, Inc. (00087132-CU-OE-CTL); four years before defeating Moncada, Torres et al., v. Wave Crest Hotels And Resorts LLC (D070107); four years before defeating Terrazas v. Memorial Health Services (G048602), and four years before defeating Hecht-Nielsen v. Lifetime Products, Inc., the Sports Authority, Inc. (00089380-CU-BT-CTL).  Granted the foregoing are all class actions, but they illustrate the reality of today’s complex cases.)  Anticipating the resulting fatigue—to counsel and client—is vital to your success in the case, and for me, begins (and continues) with these three precepts:

Form and Empower a Team

Building a solid bench of experienced lawyers for these types of cases is imperative and starts with the identification of a “second in command” who can share in the global view of the case, and assist with its management.  Other team members must be experienced with the roles / responsibilities given to them, but nonetheless afforded an opportunity to share in the “big picture” planning.  Institutional knowledge that is developed must be shared; otherwise, you risk loss of focus – by people who don’t have a complete picture, and loss of continuity if – as sometimes happens – team members come and go.  The team, now in place, must then be empowered to perform their roles, and given an understanding of how their contribution is necessary to the overarching strategy.  Without a shared sense of ownership in the case, it is more difficult to keep team members engaged over the length of the matter. 

Document Your Case

Create a timeline, and update it.  Each team member can and should contribute to the case timeline.  The practice is invaluable for many reasons: it memorializes events / developments (big and small), it provides a quick history of the case for new (or forgetful) team members, it is useful for the summaries included with most motions, and allows you to constantly validate activity against the case strategy.  A timeline is also helpful for updating your client.

Communicate With Your Client Regularly

Update your client regularly and without prompting.  This is the most important practice pointer for any type of matter, but it is especially true with complex actions.  Like the practitioner, your client is also susceptible to the same fatigue, loss of focus and internal transition.  Anticipate this concern—and the potential impact on your relationship—with regular updates, and consider providing them access to your litigation timeline (or create and update an abbreviated version for them).  This provides ready answers to most client questions, and will indirectly address the time-to-time perception of a lack of progress common to years-long cases.  Providing regular updates and showing empathy to the situation will go a long way to keeping your client committed to working with you.

Working on long, complex cases is rewarding, but requires significant effort to maintain the constant energy and focus required throughout.  Pre-planning and continued emphasis on these core principles has helped my team and me to keep that focus, and enjoy successful outcomes, and I believe that it can help you!

Alexis Gutierrez

Labor and Employment Practice Group Chair

About The Author: Mr. Gutierrez is the Chair of Mack LLP’s Litigation Department, in addition to serving as practice group leader of the Firm’s Labor and Employment Group.  With over 20 years of first chair trial experience, Mr. Gutierrez provides business and employment counseling and complex commercial litigation support to public and private entities, and non-profit organizations.  He enjoys Martindale Hubbell’s highest peer rating (“AV Preeminent”) for Legal Ability and General-Ethical Standards.  He is also a Recognized Practitioner® with Chambers USA Guide and has been consistently recognized by Best Lawyers in America®, and by San Diego Magazine as a Top Lawyer® for Labor and Employment and ADR (since 2013).  He can be reached at [email protected].