by Heath Cheek
January 2015 Dicta
It’s the scenario that every client dreads. After hiring counsel to handle a litigation matter, the case goes off the rails. Maybe the current counsel is not devoting enough attention to the case, or maybe the court issued a series of adverse rulings causing the client to lose faith in its counsel, or — in an extreme, real world example — maybe the client learns that the state bar recently suspended its counsel. Whatever the cause, the client is suddenly thrust into the shoes of a baseball manager deciding whether he needs to call the bullpen to take over for the starting pitcher.
Whether you are in-house counsel or the new lawyer called in for relief, stepping into a heavily litigated case in the middle of litigation requires quick decision-making and an all-encompassing devotion of your time while you get up to speed and clean up the mess. Over the past few years, I’ve been called in to take over several cases from other firms in the middle of the case. In fact, many of my most satisfying victories have come in cases that appeared unsalvageable at first glance. No doubt you have faced or will face a similar situation. Hopefully the following tips will help you get through it:
Switching Pitchers – If you are in-house counsel, you need to determine whether current counsel can salvage the case or you need to call in relief counsel. The decision to switch counsel can be costly because new counsel will require significant time and resources to get up to speed. But the consequences of not switching can be costlier if current counsel cannot pull the case out of the ditch.
Look at the Scoreboard – Are the bases loaded? You have to know the situation you are in, and the immediate tasks at hand. Use the scheduling order to determine immediate deadlines, but remember that some scheduling orders are more comprehensive than others. Do not forget about deadlines provided in the Rules of Civil Procedure, but not in the scheduling order. Look for any motions on the docket that still require a response or have not been ruled upon, to determine what you need to address first.
Appeal to the Umpire – If you are switching counsel, it may be appropriate to ask the court for a continuance of any pending deadlines. Fully explain the situation to the court. If previous counsel engaged in bad behavior, do not be afraid to inform the court of any extenuating circumstances that will make your client’s request look reasonable. But don’t overreach by using a counsel change to ask for an excessive continuance. Judges will look more favorably on your request if it is reasonable.
Don’t Let Inherited Runners Score – Review previous counsel’s petition and discovery responses. You are responsible for them now, even though you did not draft them. If there are claims you do not agree with, non-suit them. If there are discovery objections you do not feel comfortable defending, amend them. Do not let previous counsel’s strategy, tactics, or mistakes become yours by default.
Fire a Fastball Up and In – Sometimes opposing counsel will see a switch in counsel as an opportunity to go on the offensive, in the hope that they can gain an advantage. For example, in one case, the day after I substituted into it, opposing counsel filed a motion for summary judgment and then refused to agree to even a two week continuance on the hearing. Do not let your client’s change in counsel become an opportunity for opposing counsel to seize control of the direction of the case. While you are getting up to speed, one way to prevent the other side from taking control is to give them some work to do (like responding to new discovery requests).
Ignore the Crowd Noise – Stepping into the middle of a heavily litigated case, your mind will be pulled in a dozen directions. When I am in one of these situations, I typically go to a distraction-free space (typically the library or a booth at a quiet restaurant) with no phone, laptop, or internet access (the most important part). I use this time to prepare a task list on a legal pad and then prioritize it. Take control of the case through careful, proactive organization, instead of allowing yourself to be consumed by reaction.
Heath Cheek is a partner at Bell Nunnally & Martin LLP, focusing on high-stakes commercial litigation. Heath can be reached at firstname.lastname@example.org, or via the firm’s website – http://www.bellnunnally.com.