Law Times

PAGE 12 FOCUS march 14, 2011 • Law Times Litigation no longer just about advocacy Clients, firms looking for team players with solid business acumen BY JULIUS MELNITZER For Law Times notion that clients could fi nd the best of them wanting be- cause they're pure advocates is tantamount to heresy. But things have changed. T Even the most adamant of tra- ditional counsel will admit that winning isn't everything in to- day's environment. Some might even concede that winning isn't always the most desirable of outcomes for their clients. Th ere are corollaries to these heresies. One can be found in the skepticism that now greets the marketing maxim — "If you do good work, you'll get good work" — attributed to the legendary James McRuer, for- mer chief justice of Ontario. "It serves the superstars well," says one veteran counsel. "But how many Earl Cherniaks do you see out there?" For the great unwashed, then, developing marketing skills is essential. "If you're a litigator who wants to be a partner, you bet- ter have a strategy of practice de- velopment," says David Byers of Stikeman Elliott LLP's Toronto offi ce. It's not that good advocacy skills aren't a requirement; it's just that having those skills is of itself no guarantee of success in a world where business solu- tions and effi ciency drive the litigation bus. Instead, strategic o some counsel, cer- tainly those mired in the days of yore, the thinking, client communica- tion, case-management skills, and team-building sensitivi- ties combine with advocacy expertise to form the head and heart of today's successful business litigation counsel. Even junior associates have to learn management skills at an early stage. "Clients are prepared to accept less hands-on control, so instead of doing basic tasks, associates will be re- sponsible for managing the third-party providers who are doing the jobs they used to do," says Linda Plumpton of Torys LLP's Toronto of- fi ce. Eff ective project manage- ment, then, is clearly a big part of the solution to the value equa- tion clients are seeking but only if the managers keep the big pic- ture in focus. In practical terms, this means that prevention, risk assessment, damage control, cost, liability at the end of the day, and survival are all at the forefront of clients' thinking. "As clients become more sophisticated in identifying potential disputes, they're con- sulting us earlier than they used to," says Gerald Ranking of Fasken Martineau DuMoulin LLP's Toronto offi ce. "Increas- ingly, litigation counsel fi nd themselves in the position of trusted business advisers who will preserve a client's money and reputation." Mark Evans of Fraser Milner Casgrain LLP says clients have moved from reacting to claims things, it's also true that cost can factor signifi cantly into a client's perception of value. "Gone are the days when clients come to you with a $100-million or even a $1-billion lawsuit and your instructions are 'Do what you have to do,'" Ranking says. So while the name of the game is still litigation, the orientation is far broader than it was in the past. "Clients are not looking 'Clients are not looking for trial skills and they're not looking for dispute- resolution skills,' says Glenn Smith. to seeking advice and options to avoid them in the fi rst place. "It's not that clients have no need for the litigation depart- ment's traditional role of eff ec- tive advocacy," Evans says. "It's just that a full-service litigation department is no longer servic- ing clients properly if its law- yers don't play a proactive role as well. Th ink of it as putting 'counsel' back into the term." Putting it another way, it's the client's risk tolerance that governs, not that of the lawyer. "You cannot overwork a fi le to satisfy your own neurotic needs," says Larry Lowenstein of Osler Hoskin & Harcourt LLP. Th at's because cost invari- ably factors into the equation for both the client, who must consider the outlay, and the law fi rm, where time that it can't bill doesn't do much for profi tability. And while there's certainly truth in the old saying that cost and value are diff erent for trial skills and they're not looking for dispute-resolu- tion skills," says Glenn Smith of Lenczner Slaght Royce Smith Griffi n LLP. "Th ey want proactive risk manage- ment and they want people who can keep them as far away from a courtroom as possible. People who want a trial are fewer and further between ev- ery single day." And that thought brings forth another apparent heresy. "If being right in the law doesn't eff ect a business solu- tion, then being right in the law is just one of the spokes in the wheel of what lawyers must provide to their clients these days," says Geoff Shaw of Cas- sels Brock & Blackwell LLP. In other words, there are only so many situations that warrant running up hours to research the law in New Zealand. "What it amounts to is that we're still looking for those people who have the best judg- ment about what to do in a case," Byers says. "A lot of the other aspects of the job can be taught and learned, but judg- ment is innate." Th e upshot is that maintain- ing and building a litigation department in today's environ- ment has become a complicat- ed endeavour that engages two critical functions: fi rst, ensur- ing that team members have the skill sets required to serve clients and attract new ones; and second, staffi ng fi les with the appropriate combination of experience, expertise, and outsourced resources. Firms must also ensure that those chosen to play the game want to deal with each other. But teamwork, whether with clients or colleagues, isn't part of lawyers' training. "Law school is for the most part an individual experience except for things like mooting where students work in groups," says Darryl Cruz of McCa- rthy Tétrault LLP. "Contrast that with MBA school, where students work in teams from the moment they start. Law school doesn't prepare lawyers for working with other people, communicating with them or managing their expectations." Picking the right people for a team, of course, means having the right people to start with. "Th e recruiting focus used to be on individual brilliance in terms of legal thinking and analysis," Cruz says. "Now we're looking for other com- petencies such as business acu- men, the ability to be a team player, and leadership qualities — non-traditional criteria of the kind that behavioural in- terviewing reveals." In other words, the abil- CROSS-BORDER LITIGATION INTERJURISDICTIONAL PRACTICE AND PROCEDURE Kenneth C. MacDonald GUIDANCE ON ALL ASPECTS OF CROSS-BORDER LITIGATION FOR INTER-PROVINCIAL, INTERNATIONAL AND MULTIPLE JURISDICTIONS Cross-Border Litigation: Interjurisdictional Practice and Procedure offers practical guidance on all aspects of cross-border and inter-provincial litigation, covering everything from deciding where to commence litigation to enforcement of a judgment. It is an excellent handbook to help you understand the legal considerations involved and map out the right course of action, such as: • where is the best place to sue • strategies for challenging the plaintiff's choice of venue • how to ensure proper service outside your jurisdiction • how to determine which jurisdiction's laws apply • obtaining evidence from other jurisdictions • responding to requests for evidence from other jurisdictions • pleading and proving foreign law • pre-judgment cross-border remedies • enforcing foreign judgments at home and domestic judgments abroad ... and more Hardbound • 424 pp. 2009 • $115 P/C 0291010000 ISBN 978-0-88804-484-6 Prices subject to change without notice, to applicable taxes and shipping & handling. This resource includes time saving features such as a decision tree to help analyze where a case should be litigated, appendices with related Hague Service Conventions and a glossary of terms. Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluation ity to rip a witness apart isn't enough. Today, law fi rms are looking for individuals with wide-ranging people skills who don't inadvertently cre- ate adversarial situations when they're not warranted and have the ability to keep a fi le moving in a way that allows the client to see an end in sight. Determining who will de- velop into the right people, however, has made recruitment a complicated business. "We spend a great deal of time on client-centred recruiting," says Evans. "But it is a challenge to fi nd bright, capable people who can fi ll the multi-faceted skill set that's required." CANADA LAW BOOK® LT0214 www.lawtimesnews.com

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