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ence ranged from solo in-house counsel to bigger teams; all looking for solutions to help them manage cases better. "What I heard consistently at our session is that corporate counsel look to the external counsel for their expertise coupled with responsive communications and controlled litigation costs," he says. "It sounds pretty easy, but it's not." Many of those at the seminar talked about how long the discovery process takes, the uncertainty of motions and court processes, the challenges of trying to accurately predict litigation budgets, and the problems with trying to deal with budgets based solely on an hourly rate. What in-house really want to know is how external counsel is going to get them out of a case early with the least public exposure and cost, says Sigurdson. Also speaking on the panel was Alan D'Silva, a senior partner with Stikeman Elliott and a veteran of big corporate litigation. "At the end of the day, the better way is to have budgets and partnerships with your counsel and an understanding from day one about how much things are going to cost. I just don't think reducing an hourly rate alone is an answer." Much like what McCarthy Tétrault experienced with RBC on the class action, clients have become very sophisticated in their selection process, says D'Silva, and a lot is expected from counsel. On the issue of budgeting, he says it's very hard to determine what a case will cost over a 10year period. "On the big cases it's easier to do on a stage-by-stage basis. I know some try to give budgets on the entire case because clients are asking for that but I think it's destined to fail or not be ultimately reliable." Another issue for in-house counsel are the new summary judgment rules —  which were expanded in 2011 —  and allow for, even on large, big-dollar cases, the parties to have a summary judgment motion instead of a trial. It reduces cost substantially and reduces the time of litigation. "We did a fiduciary duty case where we avoided about a four-month trial by having a summary judgment motion and then a much shorter trial. That's just another way the world has changed," says D'Silva. Creating a tool kit Historically, Sigurdson says in-house Litigation is a team sport and we have always talked about it as a team sport in the law firm but it's a team sport with your client as well and it can foster better conversations about how they want the file to be handled. In the end they are much happier with the outcome. Christine Lonsdale, McCarthy Tétrault LLP counsel have also encountered problems due to lack of communication, files sitting around, lack of litigation file management, no set timelines, inappropriate staffing, and costs not in alignment with the matters at issue or the final result. Sigurdson notes those problems have been addressed at TD through the creation of a tool kit for approaching litigation and establishing an external counsel program. The first tool in the kit, he says, is the RFP. In some cases that might mean the kind of RFP RBC conducted for the class action case while for others an RFP may be used to establish a preferred panel of counsel to be used over a number of years. Next is to develop some external counsel litigation management guidelines to address communications, reporting, and timelines. "Whether you have 50 files or 1,000 a year, you still need this tool. After that, establish litigation protocols — how do you expect counsel to interact with your in-house lawyer?" says Sigurdson. Then comes the budget, which involves understanding the level of complexity and establishing a preferred staffing model based on the level of complexity. "I also BENNETT J. 1/4 page Your lawyer. Your law firm. Your business advisor. BennettJones-2_IH_Apr_13.indd 1 w w w. c a n a d i a n law y er m a g . c o m / i n h o u s E june 13-02-26 10:29 AM 2013 • 25

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