HOW DO CORPORATE CLIENTS PICK FIRMS

How Do Corporate Clients Pick Firms For Their ADR Expertise? Steven J. Comen Goodwin Procter LLP William J. Connolly, III Vice President, Senior Litigation Counsel State Street Bank & Trust Company Bruce Patton Director Vantage Partners LLC Shepard M. Remis Goodwin Procter LLP Brenda R. Sharton Goodwin Procter LLP Thomas M. Hefferon Goodwin Procter LLP Michael T. Heyrich Assistant General Counsel Citigroup Inc. Andrew E. Shipley Assistant General Counsel, Litigation Northrop Grumman Corporation Patrick S. Thompson Goodwin Procter LLP October 25, 2007 ©2007. Goodwin Procter LLP The More Things Change… “Agree, for the law is costly.” William Camden c. 1605 2 3 Objectives of In-House Counsel That Influence the Decision to Pursue ADR • Advance company’s core business goals – Conduct negotiations and design contracts to build reliable business relationships – Build a strong regime of precedents and on-the-merits decision making • Mitigate risks to business goals – Avoid unnecessary and unexpected litigation – Avoid undesired regulatory action or delay • • Minimize uncertainties – Plan for contingencies and issue management (governance) – Anticipate market fluctuations and evolution Manage costs – Ensure effective conflict management; avoid unneeded escalation – Leverage information and experience across the firm 4 How ADR Can Help • Conserve resources – Time of company personnel – Attorneys’ fees and expenses • Speedy resolution • Avoid unpredictability of juries • Able to control privacy and confidentiality • Allows more creative outcomes • May be pre-agreed in contract 5 Possible Downsides of ADR • May want jury trial, right to appeal, and ability to establish precedent • Business leaders may prefer delay – Avoid costs in the short term – May anticipate change in political/legal climate • Expectation of compromise • Concerns about ADR process or outcome • Substance of the dispute does not lend itself to ADR 6 What Do We Mean by “ADR”? • “Not traditional litigation” includes a very wide range of processes: mini-trial, arbitration, mediation, good offices, facilitation, negotiated rulemaking, collaborative law, ombuds discussion, … • Process is powerful • Not all “helpers” are equal 7 Client’s Expectations in Choosing ADR •Efficient resolution without surprises  Budget and cost management  Realistic risk assessment  Desirable outcome  Periodic updates  Consistent communication •Confidentiality and privacy •Relationships •Advancement of business objectives •Vindication 8 Factors Considered in Selecting Outside Counsel 1. Does outside counsel understand our business? 2. Does outside counsel have knowledge of the product or industry involved? 3. Does outside counsel understand our objectives for this matter? 4. Is outside counsel trained and experienced in ADR? 9 Factors Considered in Selecting Outside Counsel 5. What is the reputation of this law firm or these lawyers? 6. Will outside counsel communicate and coordinate to assist me in effectively delivering legal services to the client? 7. Will outside counsel staff the matter appropriately and cost effectively? 8. Does this law firm have sufficient resources to handle this matter? 10 Factors Considered in Selecting Outside Counsel 9. What has been my prior experience with the temperament and personality of these lawyers? 10. If no prior experience, what have my peers thought about this law firm or these lawyers? 11. Do these lawyers have any specific, distinguishing qualities? 12. Are these lawyers familiar with the mediator/arbitrator and adversary’s counsel? 11 Measuring the Success of Outside Counsel • Ability to resolve the matter consistent with the client’s expectations • Long-term view: able to lay groundwork now for favorable resolution later • Remember that sometimes a lot depends on the mediator/arbitrator 12 Questions? Steven Comen scomen@goodwinprocter.com William Connolly Thomas Hefferon Michael Heyrich Bruce Patton Shepard Remis Brenda Sharton Andrew Shipley Patrick Thompson wjconnolly@statestreet.com thefferon@goodwinprocter.com heyrichm@citi.com bpatton@vantagepartners.com sremis@goodwinprocter.com bsharton@goodwinprocter.com andrew.shipley@ngc.com pthompson@goodwinprocter.com 13