Easy Work Tips for In-House and Outside Counsel in an ADR Proceeding

In-house counsel and outside counsel are necessary partners in the progress of any organisation they are both working for. When it comes to an ADR proceeding, a lot can be taken for granted about the engagement of in-house counsel on a matter involving the organisation.

The following are simple ways to maximise in-house counsel/outside counsel relationship during an ADR proceeding:

1.             Full briefing

The first thing to be done is give outside counsel a full brief of the history and background of the case. As much as possible, all documents being sought after by the outside counsel should be provided in order to give clarity to the job ahead. Full interviews should be allowed and access to documents should be unrestricted. Once confidentiality obligations are assured, there should be no holds barred in the sharing of information with outside counsel. At this point, the organisation’s’ clear intentions should be made known to outside counsel even if it is not completely agreeable to outside counsel. Unrestricted access to the people directly involved with the issue should also be assured by in-house counsel throughout the ADR proceedings.

2.             Attendance of critical meetings         

Where helpful, in-house counsel should invite outside counsel for in-house meetings that can shed light on the case. These should not be restricted to meetings of the legal team but also of the technical team as long as it can bring some clearer understanding or perspective to the issue that is subject of the ADR proceeding.

3.             Training sessions

Training sessions can become necessary to bring outside counsel up to speed with the workings of the organisation and the intricacies of how its operations or activities are carried out. This is especially necessary where there are technical operational activities involved, the understanding of which may not be easily understood or known to the outside counsel.

4.             Field visits

As part of preparations for the proceedings, it might be helpful that with in-house counsel, field visits are conducted to the physical sites relating to the matters in contention in the proceeding. This enables the outside counsel to envision better the position taken by the organisation and enable the asking of crucial questions about the circumstances of the case that may help during the proceeding.

5.             Confirmation of the layers of information required

As part of the strategy for the proceeding, it is necessary for both the in-house counsel and outside counsel to develop a checklist for the confirmation, reconfirmation and reconfirmation of information to be presented at the proceedings. This will prevent a situation where information not thoroughly confirmed is presented during the proceedings and then attempted to be withdrawn. This checklist will highlight all the necessary participants in the chain who need to confirm the information intended to be submitted during the proceeding. As outside counsel may not have direct access to these people within the organisation, the responsibility falls on the in-house counsel to ensure that this necessary requirement is fulfilled.

6.             Onsite work space

When complicated matters are being dealt with, it is highly recommended that outside counsel be given a workspace within the premises of the organisation to collaborate consistently with the in-house counsel while preparing for the proceeding. Often time, a physical presence hastens the production of documents and exchange of information without delays.

7.             Dedicated email addresses

Depending on the complexity of the case and for efficiency, it may be helpful that dedicated email addresses are provided for the case for the constant exchange of information and provision of documents. This allows issues relating to a particular case to be promptly and clearly dealt with the necessary attention and prominence it deserves.

8.             Dedicated in-house counsel

In liaising with in-house counsel, dedicated counsel should be assigned to the outside counsel to ensure consistency without delays. This enables the historical of the proceedings to be preserved and a seamless engagement with the organisation throughout the conduct of the proceedings.

9.             Agreed and signed off timelines for tasks during the proceeding

From the commencement of the proceedings through to its completion, every task or activity to be carried out between the in-house counsel and outside counsel should be held to strict timelines for delivery. This prevents time loss and the need to constantly seek an extension of time during the proceeding. This has to be agreed to in writing and signed off by both counsel.

10.          Prompt settlement of fees

In-house counsel should play a role of ensuring the outside counsel’s fees are settled promptly without any delay. This will prevent a distraction on the side of outside counsel who might then need to chase up his fees with other people in the organisation who may not appreciate the purport and the importance of the services being rendered.

11.           Regular meet-ups for case review

Much as hearing may not always be ever so often, it would be helpful that regular meet-ups (daily, weekly, monthly etc. depending on the complexity of the matter) are scheduled between in-house counsel and outside counsel in order to consistently appraise strategy and ideas on how to move the case forward. When this is done regularly, it enables both counsel not to lose sight of the issues at hand nor lose track of the strategy for the matter and even make the strategy better. The relationship building, also adds to the ease with which the tasks will be carried out.

12.          Deposition of witnesses

Witnesses must always be deposed in the presence of both in-house and outside counsel. Situations where only of the counsel is present should not be allowed to take place as it is necessary that both counsel understand fully what is being achieved for the organisation and have an equal understanding of any risks that may come up as a result of the deposition.

13.          Close-out meeting

Much as close-out meetings are not exciting when a matter has not gone in one’s favour, they are necessary to identify where things went wrong and what could be done better next time. This is especially important for the organisation which internal processes and procedures may have in fact contributed to the unfavourable route the matter had taken.