A trio of in-house lawyers from the litigation departments of global Houston-based energy companies on Thursday gave a rare glimpse of what it takes for an outside firm to be retained for these companies’ big litigation matters.
During a seminar at the Institute for Energy Law’s 17th Annual Energy Litigation Conference in Houston last week, the lawyers, who work at BP America, Exxon Mobil Corp. and Chevron Upstream stressed a handful of their key expectations of their outside counsel, including diversity, efficiency in communications and the ability for big personality trial lawyers to work well with others from different law firms.
The panel featured Exxon Managing Counsel of Litigation Reid Gettys, BP America Litigation Counsel Tara Kelly and Deputy Managing Counsel of Litigation Amira Love.
Here are some key points the lawyers made on the following topics:
Staffing Trends
Each in-house lawyer said their companies are increasingly using virtual teams of multiple law firms for their cases versus hiring only one or two firms.
Though virtual staffing is often counterintuitive to the typical trial lawyer personality, the panelists said they’ve found hiring multiple firms for a matter to be the best outcome for their clients.
“I’m amazed by how well it works,” Kelly said.
That said, it doesn’t come without its challenges.
Love said she is currently working on a matter that includes a virtual team of seven firms. For any first chair trial lawyers who struggle with co-chairing with other firms on the notion that they feel it “invades your space,” she said “you just have to check your ego at the door.”
Gettys matched this sentiment. He said he “almost exclusively” employs virtual teams for Exxon’s cases.
“We are constantly weeding out people who don’t play well in the sandbox,” he said.
One thing he said he likes to do is to pair a senior partner from one firm with a junior partner from another firm that his department would like to see get more experience.
Diversity Amongst Outside Law Firms
Moderator Matthew Regan of Kirkland & Ellis then asked the in-house lawyers how important it is that diverse candidates are active on the outside teams that they employ. The short answer? Extremely.
Gettys said when his department has the diversity conversation with outside lawyers, the question he often receives “comes down to why?” from the firms.
“I don’t mean to sound arrogant… but if you don’t have a diverse team, you won’t get our business,” he said.
However, he pointed out that diversity does not always have to mean gender or race. Gettys gave a shout out to Ted Ray, an in-house colleague at Exxon, who he described as a “45-year-old white guy” yet “the most diverse person” he knows in terms of thinking.
He said if he told Ray to meet him in the lobby, Ray would go down through the basement and through all other kinds of routes before arriving at the meeting spot.
He said he challenges senior partners to include associates on their teams who think through legal issues in ways no one else has.
Love also echoed the importance of giving opportunities to younger lawyers, pointing out that it’s not only great for diversity but “good firm succession planning.”
She also stressed the importance of increasing the total number of diverse lawyers. For example, Chevron participates in a pro bono program where lawyers sign up to visit high schools and middle schools to expose students to the opportunities of a legal career who otherwise would not have such exposure in hopes of improving the diversity pipeline.
Kelly was quick to point out that the weight is not only on BP’s law firms to make sure diverse lawyers are getting opportunities; it is also on her own team.
“We’re just as guilty,” she said.
She said despite stressing the importance of diversity, one natural reaction when an important hearing or deposition crops up in a case is to “stick to the tried and true” for her go-to lawyers, which often “tends to be an older white man.”
“It’s up to us as in-house counsel to make sure [diverse lawyers] are getting those roles,” she said.
Mock Juries
The attorneys said they find extreme value in using mock juries for their big upcoming trials.
“Things settle so much that you should take mock juries seriously and treat it like the real thing,” Love said.
Love pointed out that mock juries also pose a great opportunity for her to assess the roles her outside lawyers should play during trial – particularly young attorneys.
She referred to one instance during a mock trial in which the senior partner did a good job, but one particular female attorney just “killed it.” She said being able to see the female attorney during the mock trial resulted in her getting a much larger role at trial than originally slated.
“In my view mocks always lead to a better product,” she said. “It’s good for younger lawyers to show what you can do.”
Kelly said she also finds mock juries valuable, but stressed the importance of conducting them early enough in the litigation to “absorb” the lessons drawn from them.
“I think a mistake in jury research could be to do it too late,” she said.
Data Discovery Management
Due to the modern demands of e-discovery, the in-house panelists stressed the importance of their outside lawyers always being up to speed on discovery law, having the ability to collaborate with their companies’ in-house lawyer and paralegals and for them to have knowledge on the cutting-edge tools that help expedite the process.
Love pointed out a recent discovery project in which her team and her outside lawyers were able to pare down “2 million documents to 250,000” through an iterative process of using search terms and predictive coding.
She said she also values law firms visiting her department and doing discovery presentations on new technology that can make discovery more efficient.
Gettys said Exxon is “restructuring” how it handles discovery and is considering bringing in a litigation attorney “for that role” who knows the topic well.
He said he is also trying to protect Exxon from “gotcha litigation” – a.k.a. when parties turn over too few documents in a discovery order and get in trouble with the court as a result.
Time Saving Tools that Their Outside Lawyers Do Well
They rounded out the discussion by disclosing some of the communication tactics that they appreciate from their outside lawyers.
Above all, Love said a critical expectation she holds for her outside lawyers is their ability to “communicate effectively via email.”
She said effective, short emails that tell her off the bat what she needs to know on a case development make her life much easier. She is particularly a fan of bullet points to highlight key takeaways.
Gettys concurred.
“We expect the communication to be ongoing, constant and regular,” he said. “It doesn’t need to be a long memo. I don’t do well with surprises that surface because you didn’t tell me.”
Kelly said email updates do not need to be “a genius piece of work.” She said she much prefers something concise that lays out “what the problem is, what I need to do and what the next steps are.”
Outside counsel should keep in mind that the email updates they send to her are turned over quickly to upper management at the company, she pointed out.