Escape Disputes Unscathed and Enlightened- Best Practices for Chief Litigation Officers

March 29, 2010 - PRLog -- Interview with: Michael S. Dufault, Assistant General Counsel, General Dynamics Corporation




At times, litigation may be unavoidable. But, in the lion’s share of cases, litigation can be averted through proactive strategic risk management and thoughtful negotiation skills. The most successful Chief Litigation Officers (CLOs) are able to focus on likely areas of risk by working closely with their company’s business leaders and gaining valuable insight into the fundamental nature of their business plans and execution. When issues do arise, the key for avoiding litigation is to fully comprehend the strengths of your potential adversary’s position, while taking an open and realistic approach to bridging any gaps between your respective companies’ expectations and interests, according to Michael Dufault, Assistant General Counsel at General Dynamics Corporation. A speaker at the marcus evans Chief Litigation Officer Summit Spring 2010 taking place in Miami, Florida, March 25-27, 2010, Dufault exchanges his ideas on cost control management, e-discovery and long-term strategies.  

What are some of the issues challenging CLOs right now, and what solutions would you recommend?

Michael Dufault: First, one of the biggest challenges facing CLOs is the need to control the costs of outside counsel. As we emerge out of the recession, company legal departments of all sizes continue to survive by doing more with less money. This dynamic necessarily requires CLOs to assume a more direct role in both risk management and in managing active litigation. To be successful in such an environment, CLOs are forced to fully understand the fundamental nature and need for the legal work and services they will receive from outside firms. Further, CLOs must set appropriate, result-oriented goals.

Second, the next-biggest challenge facing is CLOs is keeping up with the evolving obligations of companies to set, communicate, and adhere to their document and data retention policies. A company’s obligation to preserve such materials can be especially daunting for large multi-national corporations that have numerous and separate business units around the world. CLOs need to know how their document retention plans work and where documents and data are stored. And, equally important, CLOs need to understand the technology underlying their respective company’s storage systems. It is clear that Judges and the Courts have caught up with all the latest advancements in technology and are well aware of the different document retention and retrieval tools that are available. This raises the bar on a CLO’s ability to keep up with recent trends and to ensure that his or her company’s data storage and retrieval processes are adequate and sound.  


What Cost Control Management strategies would you recommend?  

Michael Dufault: Companies can do many things to reduce costs. First, they can minimize the number of law firms they employ and attempt to negotiate discounted rates with preferred providers based upon an expected increase in volume of work. Second, even in cases where a reduction of service providers is not prudent or possible, companies can still open negotiations for discounted rates with their current firms. Law Firms are generally receptive to such negotiations because, frankly these days, they cannot afford to lose good long-term clients. And third, for certain types of work, companies can explore negotiating fixed-fee arrangements with their outside counsel, which is the latest trend in cost savings.

What long-term strategies would you advise to CLOs?

Michael Dufault: In terms of document retention and e-discovery, CLOs need to become more technically savvy and there are plenty of opportunities to do that by inviting vendors to assess your company’s IT systems, by attending various in-house counsel events, and by getting insight from other CLOs in your industry on their best practices. CLOs also need to take a proactive role in reviewing and enhancing their company’s document retention policies and further need to review their Hold Order processes to ensure that they are effectively communicated, managed, and maintained. Taking the lead in such areas – while working closely with your company’s IT departments – will increase the value of a CLO to his or her company and will ultimately ease the uncertainty and risk a company may face in responding to discovery.    

As for long-term strategies for avoiding litigation, the best advice I have is to develop positive working relationships with the counsel of your company’s partners, vendors, subcontractors, and customers. The value and importance of such relationships cannot be overstated. The existence of a productive working relationship with a potential adversary’s counsel, in most cases, will have an ameliorating effect on your ability to resolve issues. This requires understanding your adversary’s needs and perspective, and adopting reasonable positions. And most important, when engaged in dispute resolution, treat your adversary with dignity and respect and do not lose your cool. There will be plenty of opportunities for heated arguments to be raised in court filings, if negotiations fail.  

What is your outlook for 2010, and how can litigation attorneys get ready for future changes?

Michael Dufault: My outlook for 2010 is that companies both big and small will continue to put pressure on their CLOs to more effectively manage their costs by setting tighter budgets and by taking a more hands-on approach to litigation. This will be a significant challenge, and will often required CLOs to take on work that may have otherwise been outsourced. Such challenges will further require that CLOs effectively balance their time engaged in traditional risk mitigation with more time spent managing active litigation.    


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About the Chief Litigation Officer Summit Spring 2010

This unique forum will take place at the Doral Golf Resort & Spa, Miami, Florida, March 25-27, 2010. Offering much more than any conference, exhibition or trade show, this exclusive meeting will bring together esteemed industry thought leaders and solution providers to a highly focused and interactive networking event. The summit includes presentations on litigation hold orders, e-Discovery best practices and managing outside counsel.

For more information please send an email to info@marcusevanscy.com or visit the event website at http://www.chieflitigationofficersummit.com/MichaelDufaul...


Please note that the summit is a closed business event and the number of participants strictly limited.

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