Interview with: Mark Willingham, Managing Partner, Willingham, Fultz & Cougill LLP
Litigation is considered purely an expense in many companies today, according to Mark Willingham, Managing Partner, Willingham, Fultz & Cougill LLP. “If companies allow their trial counsel to become a legitimate component of the business structure, so that they understand the goals and objectives of the organization up front, help identify trial risks before they occur and assist the company representatives to present the company’s position in the most favorable light when necessary, litigation costs will decrease. The trial attorney’s perspective is unique to the company and can play a vital role in the company’s success if Chief Litigation Officers (CLOs) utilize them correctly. If this investment is spent up front, it will lower costs in the long-run,” he adds.
Willingham, Fultz & Cougill LLP is a law firm at the marcus evans Chief Litigation Officer Summit Fall 2013, in Amelia Island, Florida, September 8-10.
What are some cost-effective legal alternatives that CLOs do not consider at first?
It always depends on the legal issue at hand, but one option for many Human Resource (HR) issues is the HR neutrals. They are essentially neutral mediators who come in to work out an employee dispute without going through formal legal litigation, or even arbitration. This allows both management and personnel to resolve the dispute much quicker and more efficiently; and hopefully prevent the dispute from festering within the company.
Most CLOs do utilize arbitration for many legal issues, and for contract and commercial disputes, arbitration traditionally continues to be a more efficient and cost effective alternative to this type of litigation, and allows the company to forego the risks associated with judges and juries. Companies are more likely to obtain more consistent rulings and outcomes that make business sense.
How could CLOs predict the outcome of litigation? Why is your database a valuable tool for CLOs?
Our database is currently comprised of more than 400,000 plaintiffs and has evolved into a virtual encyclopedia with instant access to critical information for many clients. Data from historical and similar cases and claims are the best benchmarks to forecast settlement values and likely jury verdicts. The key is to be able to perform this evaluation efficiently; our database allows us to do what other firms simply cannot. There are many factors that can affect the value of a case; the venue, the judge, plaintiff counsel, and the company’s reputation in that venue are all variables that must be considered.
Strategic evaluation of these variables help forecast likely verdict ranges and reasonable settlement targets. The database is at its highest and best use when there is repetitive litigation.
What is challenging CLOs the most today?
CLOs are trying to control litigation cost while mitigating risk. All organizations are under pressure to watch the bottom line and most C-level executives consider litigation purely as an expense or cost of doing business. When trial attorneys are allowed to develop up front a full understanding and appreciation of the company risks, to coordinate with the risk managers and compliance officers, identify the potentially biggest legal risks and evaluate the company coordination of safety programs, it can reap huge dividends for the company. Business should not be run with litigation fears in mind, so litigation awareness is critical.
How can they ensure success in the courtroom? What trial tactics can you share?
Some things look very good on a whiteboard, but when you see the practicality of how they play out before a judge or in front of a jury, it can be a very different result. CLOs need to identify individuals who would be good corporate representatives, the best presenters. The most dynamic and outgoing personality, someone who is a top leader in the company, may or may not be the best personality to represent the company in a courtroom. It is important to go through this analysis and identify the best person for this role well before litigation ensues and consistent with the company’s general trial strategy.
In the courtroom, a primary objective many forget is to assure the jury’s perception is that we are the most reasonable person involved. Juries look for people they can trust. If the attorney looks very antagonistic in front of the jury, that is how the jury will perceive the company. Sometimes CLOs have to change gears as well. That is one of the biggest mistakes I see in the courtroom, when the attorney presents himself as a 300 lb gorilla, and the jury is looking for the most reasonable person in the room. A strong, but reasonable approach is traditionally the most successful. Weaknesses in the case should not be hidden or explained away; address them head on. If you bring in a credible direct approach, you will gain the jury’s trust.
Contact: Jenny Keane, marcus evans, Summits Division
Tel: 312-540-3000 x6515
About the Chief Litigation Officer Summit Fall 2013
This unique forum will take place at The Ritz-Carlton, Amelia Island, Florida, September 8-10, 2013. 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 holds and preservation, global privacy programs, avoiding costly surprises and FCPA compliance.