Canadian Lawyer InHouse

7 canadianlaWyermag.com/inhouse june 2014 A roundup of legal department news and trends It's game on in bet-the-company litigation W hen it comes to high-stakes liti- gation in-house counsel play a critical role in the outcome but experts say they need to know the important steps in the battle plan. "For better or for worse when dealing with a case of a certain importance, this is your moment whether you like it or not," said Gregory MacKenzie, general counsel, 407 ETR Concession Co. Ltd., speaking during a session called "A Bird's-Eye View of High Stakes Litigation" at the Canadian Corporate Counsel Association's national meeting in Calgary last week. "You can go out and hire the best exter- nal counsel and put together the war cabinet but, at the end of the day, if you win people will congratulate you, but if you lose it will feel like a loss and you'll have to wear it for the rest of your time in the company. It's like being a Torontonian these days — wheth- er you voted for Rob Ford or not he's our mayor." Echoing that sentiment was Tom Cur- ry, a partner with Lenczner Slaght Royce Smith Griffi n LLP. "For in-house counsel the key is to own the challenge — everyone on the business side is looking to you for guidance and leadership and you must demonstrate you have the mental toughness and commit to success. These kinds of cases are not for half measures. Everybody will be looking to you and it's a great relief when you adopt that posture." From the in-house perspective, the day the statement of claim arrives is actually phase two of what is about to happen, according to MacKenzie. "Phase one was ensuring there was an internal awareness and acceptance of risk related to the practice that gave rise to the litigation," he said. "When phase two arrives it's game on for in-house counsel and there are two critical functions: one is to on-board and integrate external counsel into the war effort. The external counsel becomes the quarterback, as it were, for cases of such importance. The second is to become the person who internally marshals resources." Curry said it needs to be "all-consuming and a must-win situation" and it's vital in-house counsel plays a lead role. "By and large the in-house counsel will have intimate and detailed knowledge of the issue at the heart of the litigation and they play an important role in the strategy required to win the case," he said. "You can think of this as two separate teams that come together to form one team over the legal problem — the inside and outside team must form a working group that will deliver success." Presenting a unifi ed relationship between outside counsel and inside counsel and those on the business side is also important, said former Ontario Superior Court justice Colin Campbell, also speaking on the panel. You also need a strategic plan for liti- gation, said Curry. "You need a plan that will achieve objectives and you must commit to winning. What you need next is a mission template or path to victory. Once you go through that exercise you have a much better feeling of what you're going to do and can guide the business along with that and commit to that template. That gives you a real measure of control." IH alive there must be something we need to address," she said. She referenced former U.S. president Jimmy Carter's new book, Call to Action: Women, Religion, Violence, and Power, which claims the biggest problem the world faces is not global warming or nuclear threat, but the the treatment of women and girls. In it, he talks about the way established institutions subtly, while paying lip service to women and the importance of women, send the message that women are "less capable or different or special — all words used to diminish the impact of women in society," she said. "We have done a lot in Canada — we are at the forefront of nations in recognizing the equality of women and girls and yet we need to continue to think about this subject and work on it," she added. McLachlin pointed out that in Ontario, only 37 per cent of the practising bar are women, despite the fact more than half of law school graduates are women. "My challenge to you to is to ask how we could be doing better," she said. "Is the fact we're not doing better related to some unstated assumptions? Are we still keeping women down and keeping women out? Do we have equal numbers of women as men in our institutions? If the answer is no, the supplementary question is, 'If not, why not?' There may be good reasons but we need to ask the questions." She also challenged the audience to ask whether women in their organizations are playing roles of equal importance to the men and if not, why? Also, are women playing the same roles? "You may have an equal number but if by and large there is a structural difference there is something to consider there as well. "If we were to honestly ask ourselves those questions we could have a richer debate than just suggesting that women need to 'lean in' more," she said. "There's no point lecturing to people until people ask themselves the hard questions, then things will change." McLachlin asked if those same questions were put to a law fi rm or legal organization where the standard law fi rm model of all billable hours at the same price, regardless of merit, would perhaps be shown to be one of the reasons there aren't more women in law fi rms. "Is it that the very high expectation for huge billable hours as the only way to get ahead is an impediment? Should we be mov- ing to more fl exibility not only for women but for men too? "Ask if the assumption is the way it has to be," she said. "We can do better. I believe having equal representation of gender in our institutions is important for two basic reasons — because it's fair and perceived as fair, and because I actually believe chances are it will help those institutions and our so- ciety function better." IH

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