A New Way of Litigating | managing complex litigations & avoiding spiralling out of (cost) control
An article by our partner and member of our dedicated Litigation and Arbitration team Christoph Jeloschek for General Counsel Netherlands (GCN). Go to generalcounsel.nl and sign up for their newsletter.
Most companies are averse to litigation as it typically only disrupts doing business. Coupled with unforeseen developments resulting in unexpected delays and costs spiralling out of control, litigation is therefore feared as turning into a bottom-less project. As a result, companies with a claim tend not to pursue it in court, whereas defendants are typically inclined to settle even strong cases. It is striking that litigation, while often being equally complex as an IT or M&A transaction, is still conducted without any proper project management and advance planning in The Netherlands today. In this contribution for the General Counsel NL E-news, I will describe a few concrete ideas of how this could be tackled by GCs.
An example of a new approach to doing litigations
Given our experience with project management in the technology sector, we have developed a new approach to doing litigation in The Netherlands based on predictability, transparency, and efficiency and cost control. This is achieved by using tools that allow companies and their GCs to think through the entire litigation process before it has even started.
Strategy and transparency first!
The joint litigation team, i.e. the internal team directed by the GC and the (external) litigators, starts with an Early Case Assessment followed up by a Strategy Workshop to establish and identify the end game of litigation and other strategy considerations beforehand (such as means of pressure, delay, or settlement). The strategy thus adopted will be used as a yardstick throughout the litigation.
Based on this pre-litigation analysis, your litigators then map out the various stages of the litigation from A to Z (e.g., writ of summons to enforcement) in terms of timing, deliverables, tasks and responsibilities. All of these topics are included in a Litigation Plan. This plan allows a break down of the entire litigation into pre-defined phases which enables the GC to request reliable cost estimates per phase or alternative pricing offers and to manage the own internal resources. The Litigation Plan is then used to execute the litigation strategy, which will be both updated and re-visited at each major step in the litigation to make sure that it is still aligned with the business objectives at that moment.
Fact-finding: managing the overflow of information
As part of the kick-off, the joint litigation team identifies and interviews key players in the litigation with a view to obtaining written witness statements, since oral testimony is not an ‘automatic’ feature of litigation in The Netherlands and, arguably, of lesser importance than in the US. This fact-finding is combined with automated document and e-mail search to establish the often vast paper trail that forms the backdrop of any litigation. This enables a careful prior assessment of the available evidence, not least as there is no full discovery under Dutch law. If need be, the fact-finding within a company can be facilitated by a Project Manager who assists the GC in coordinating the tasks required as part of the Litigation Plan.
Online collaboration between your team and outside counsels
All information related to the litigation (such as evidence, drafts, submissions and progress reports) is made available to the GC on a Litigation Platform. Not only does such an online tool enable monitoring of the status of the litigation at any time, but it also allows for an efficient exchange of information and, thus, collaboration between the GC and the litigators.
Conclusion
These ideas should result in a new and innovative way of conducting litigation that serves the needs of today’s businesses which require a clear, transparent and practical approach to resolving disputes in court or through arbitration. This is also in line with the way litigation is done on an international level, notably the US and the UK with their long-standing tradition of highly specialized litigators.
We are currently putting this new approach into practice for GCs to make litigations more manageable for them. It is to be hoped that, in doing so, we will contribute to pushing litigation in The Netherlands to the next level, thus mirroring other current developments of making litigation more professional and international (such as the establishment of the Netherlands Commercial Court in 2017 and the reform of the Arbitration Act in 2015).
