In this Q&A with The Texas Lawbook, Scott Kelly discusses the traits he seeks in outside counsel, what outside counsel need to know when working with him and more.
Texas Lawbook: What are the factors you consider when deciding about hiring outside counsel?
Scott Kelly: I believe the most important distinguishing characteristic for great outside counsel is when they understand how in-house litigators work. Outside counsel who understand what we really want and need make our jobs much easier and improve litigation outcomes. The best outside counsel will anticipate and provide the type of information that will be helpful for in-house counsel. This also includes understanding how to interact with and use my nonlawyer colleagues appropriately and effectively — such as paralegals and key witnesses. Other factors [include]:
- High-quality judgment;
- Demonstrated skill and experience relevant to the matter;
- A high-quality support team;
- Skilled at developing a rapport and building credibility when working with my nonlawyer colleagues;
- Ability and skill to take the case to trial;
- Ability to litigate the matter efficiently and within budget; and
- A good temperament and ethical manner of practicing.
Lawbook: What does outside counsel need to know about you? And what are your pet peeves about outside counsel?
Kelly: I like to stay involved in my litigation matters. I do my best to respect my outside counsel’s role and let them do their jobs, but I also want to be part of the litigation team rather than a passive manager. Here are a few pet peeves about outside counsel:
- Not sharing information about the case. If outside counsel has doubts, they should default to over sharing rather than under-sharing.
- Waiting until last minute to share drafts or seek my thoughts and approvals on work. I understand and appreciate that it’s unavoidable for some litigation tasks to happen last minute. Many tasks, however, should not be completed last minute and create an avoidable urgency. In-house lawyers have a lot going on during the day. Dropping something for us to review and approve the day it is due is disruptive and not good.
- Similarly, I have a pet peeve with outside counsel waiting until last minute to ask for someone at my company to sign an affidavit or verification when doing so could have been planned farther in advance. Asking one of my colleagues to sign something under oath can take some work internally. Doing so last-minute makes in-house counsel look unprepared and unprofessional to their nonlaw colleagues.
- Asking us for information that outside counsel has already asked for and received.
Lawbook: How is AI impacting your work?
Kelly: ConocoPhillips is a big proponent of AI. I use AI every day at work for big and small tasks. My work has become more streamlined as a result.
Lawbook: How is AI impacting your work and relationship with outside counsel?
Kelly: At this point, I believe it’s become an expectation that outside counsel find ways to utilize AI to improve work quality and do it more efficiently. I appreciate that I can now get AI generated summaries of depositions and other case materials from outside counsel and largely eliminate the need for outside counsel to spend time on those sorts of tasks. Of course, we still do expect that outside counsel review AI-generated materials for accuracy.
Outside counsel used AI during our trials to help with our preparation and to refine our arguments. One fun example: After close of evidence, outside counsel had everything loaded into AI and essentially asked how our jury would decide the case. It correctly predicted we would win!
Lawbook: For these three huge trials, how did you go out selecting the outside legal teams?
Kelly: The outside counsel teams were a mix of counsel already selected and some I selected. The cases were already on file, although in their early stages, at the time I joined Marathon. I was happy to learn Marathon had hired Tim Shelby and the AZA law firm for Koch and Mercuria. Tim and I go way back, having started together in the same associate class at Baker Botts. We hadn’t seen each other in a while, so it was great that we reconnected working on the cases. Tim is a great lawyer and he assembled and led a stellar team to work on the cases. Tim did a great job incorporating me into the team. It was a fun and rewarding experience to have close involvement with the trial team. In addition to being smart litigators and great in court, Tim is particularly talented working with internal witnesses. He was able to build trust and rapport with our witnesses, many of whom had left the company by the time of trial. That was critical to our success.
I personally selected and engaged Mark Trachtenberg and the Haynes Boone firm to join our team as appellate counsel for the Koch and Mercuria cases. I knew of Mark but had never met him. I had worked with Mark’s colleague at Haynes Boone, Garrett Martin. Garrett also helped with the Mercuria and Koch cases and was great. For appellate work, I asked around to people I trust to get recommendations, and Mark was at the top of the list. I studied his background and knew he was well accomplished. I also appreciated Mark’s practical and studied approach. He was a perfect addition to the team. While our opposition did not appeal either case, Mark was a key contributor at trial (e.g., arguing the jury charge and pretrial evidentiary issues) and helping draft complex arguments in briefing heavy cases.
For MDR, I personally selected and engaged George Shipley from Shipley Snell Montgomery around one year before the case went to trial. Having worked with George for years, I knew him well and had gone to trial with George before going in-house. When it became clear the case had a high likelihood of going to trial, I knew I needed to get George involved. He is a top-tier trial attorney and someone I consider a mentor. He has impeccable judgement and a practical approach to litigation. When George speaks, people listen and want to be on his side. He wins often and does so by always taking the high road. It’s not a surprise that George has a positive relationship with so many people in the legal community, including his opposition. He brought all these qualities to our MDR trial, and it was a big contributor to our success. George’s well-developed network also contributed to our success. With the trial in California, it was important to me that we have a local counsel. George knew attorneys in Los Angeles who not only were accomplished trial attorneys, but also had expertise in the exact issues we faced in the MDR case. That was Maureen Bright and the Bright and Brown law firm.
Lawbook: What am I not asking that I should be asking?
Kelly: I have twin boys who will turn 13 in July. I spend most of my time away from work watching them play on soccer and baseball teams. I love it!
Click here to read the Lawbook profile of Scott Kelly.