In May 2015, FitzGerald Consulting was invited to join the relatively new Context International global adjusting network.  Progress on this new relationship internally and externally in the Market has been very good.  During the past three months, 20 new adjusting cases have been passed between the associate members of the network.  In the UK, this involved our company in passing CI, Germany a new and complex £250k products liability claim for a completely new client attracted by the technical skills and wide coverage of our network.

Chile – At the beginning of this new year, our business in this country was appointed to deal with a major agri-business products liability claim following the wide-scale contamination of farming land. This is a sensitive, multi-million $ loss which the Managing Director of our Latin American business based in Chile, Juan Ignacio Alvarez, is handling personally.

We are delighted to welcome Peter Butler as a new associate. Peter is now working in Atlanta, US after a long and highly successful career at Lloyd’s in London. In that Market he worked principally as an active Underwriter, but also has considerable Claims experience. Peter can provide his expert services on the full range of Property and Casualty business areas in the US.

Our FCL people cover a very wide range of specialisms in the insurance Claims industry. However, a case we are currently handling represents a ‘first’ for us – under a critical illness policy where a claim has been triggered by the sad onset of Alzheimer’s disease. For anyone who saw the film ‘Still Alice’ with Julianne Moore’s Oscar-winning performance, they will appreciate that this is not a straightforward matter. Like many our company deals with, it is complex and has the emotional side that major and difficult claims often involve. Our Senior Consultant, Clive Munnings, is handling the case, bringing his great experience and expertise to the claim.

On Wednesday 25th November, FitzGerald Consulting director and Business Interruption specialist, Gerald Williams, was delighted to be awarded a prestigious qualification in mediation skills, having successfully completed a course run by CEDR, the Centre for Effective Dispute Resolution.

CEDR Mediation Skills Training is internationally recognised as the gold standard of excellence in mediation. Founded in 1990 as an independent, non-profit organisation, CEDR now operates globally across a multitude of business, industry and government sectors, and offers a wide variety of courses in various areas of dispute resolution.

Gerald attended their London-based course over a period five days at the beginning of October, along with 23 other students drawn from across many different areas of industry and commerce. The first three days comprised intensive lectures and hands-on role-play sessions. These were followed by two days of assessments when the students were examined in four key competencies: Relationships, Process, Content and Settlement Agreement drafting.

Gerald decided to do the course following Market research which suggested that there is a distinct shortage of Mediators with specialist Business Interruption knowledge and because he was enthusiastic about extending the skills gained from his career in loss adjusting into a new and rapidly expanding field.

FitzGerald Consulting hope that, by having a second accredited Mediator in the firm (our in house lawyer, David Rogers already has extensive experience in this area) we will now be able to develop this sector of the business in new and exciting ways. Accordingly, Gerald is joining CEDR Exchange to enable him to attend their programme of lectures and seminars and to gain practical experience at ‘live’ mediations.

Why do you need a Litigation Manager?

1. Most companies expect their litigation to be managed by either their in house lawyers or senior managers associated with the case. In many “routine” cases this will be adequate although even here it is possible that the case will be project managed in an inappropriate manner.

2. However where the case has a special significance to the company for any number of reasons, value, complexity, jurisdictional issues etc. it is unlikely that companies who are not regularly engaged in the litigation process will have within their organisation a person with the required experience and knowledge to manage the process.

3. Litigation managers will have experience of many different types of case often in more than one jurisdiction. They must be able to build a rapport with the external lawyers handing the case and work in a complementary fashion helping the client meet the not inconsiderable demands of their lawyers in an efficient and timely manner.

When do you need an external Litigation Manager?

4. There are a number of “triggers” which identify the need for a litigation manager.
It can be as simple as a senior management saying “this is a serious matter for us”. Another trigger will be when the company finds it difficult to allocate a suitable person with the time and resources to manage the demands of their lawyers. This will also apply to insurers who although they are professional litigators may well find they are engaged in a process their personnel do not fully understand or indeed given their other duties have sufficient time to manage in a proactive manner. In one notable case where I was instructed it was simply a sense of frustration that the company concerned was engaged in a process beyond their control.

What does a Litigation Manager bring to the situation?

4.1. Project Management
Forget for a moment we are talking about litigation and assume the company in question is asked to engage in a £1 million project. The first thing they do is appoint a suitable project manager- somebody with experience relevant to the project in question.

A substantial and/or complicated the case remains for all its complexity a project nothing more or less and with many law firms charging £400/450 per hour it is easy to see how the cost to the company can soon reach the seven figure mark regardless of the amount in dispute.

It follows that once the company becomes involved in a substantial litigation they need to treat and manage the litigation as a project.
The need to project manage litigation is a basic requirement which is often overlooked both by the client and the lawyers. Leaving to one side the subjective emotions which often accompany litigation whatever the nature of the dispute the objective is always the same to manage the process as economically as possible whilst achieving the best result possible.

4.1. Managing the Process
As with any project it is important to identify the milestone events to ensure the requirements of the case all are actioned in good time and at the appropriate cost. In most cases (whatever the jurisdiction) usually the court will issue directions which provide a road map and timetable for the conduct of the case. Failure to meet the court’s timetable will almost certainly increase the costs of the litigation and may have more serious consequences.

4.2. Controlling the Budget
In virtually all jurisdictions lawyers are required to:
a. Provide at an early stage in the litigation an estimate of their POTENTIAL fees in the form of a budget.
b. To regularly update their budget.

Often this requirement is overlooked or even when a “first blush” estimate is provided a lengthy time can pass before this is updated. This can have serious consequences for the client who may well find themselves with cash flow and other problems as they are required to fund the litigation. Also the lawyers handling the case may find themselves in difficulty when they come to bill their client as the client reacts to what was an unrealistic and out of date estimate of the projected fees. Usually a litigation manager will calculate the potential cost of the litigation and agree regular monthly payments of an agreed amount. This calculation will be reviewed with the lawyers at agreed intervals so that any adjustments that may be required can be made in good time.

4.3. Lines of Communication
A litigation manager will build a rapport with the lawyers and streamline the process, particularly on procedural issues which a lay client may find difficult to understand. This aspect will be particularly relevant if the case is proceeding in a foreign jurisdiction.

They will assist the lawyers by ensuring the client provides the appropriate level of support for example (making witnesses and documents available timely manner).

The litigation manager will marshal the client’s resources to undertake where possible some of the administrative tasks (document management etc.) thereby saving significant fees.

4.4. Time
A litigation manager will ensure they have the time required to meet the demands of the case. In fact the case will usually be their only project. This enables senior management to delegate many of the time consuming tasks associated with complex litigation.

4.5. Relationship
This article identifies situations where there is a need for a litigation manager and the benefit they can bring to a company engaged in substantial litigation. The litigation manager can anticipate the demands of the lawyers and thereby smooth the process. Whilst there should be a good relationship between the lawyers and their client, this can become strained as the process moves forward. A litigation manager can ensure the relationship is maintained at the right level and there is a good understanding between the lawyers and their client.

4.6. Settlement
In virtually all litigation there is a point where the issue of settling the case will have to be considered. Timing of any settlement approach is often crucial and will be one of the milestone dates from a very early stage. In my experience the settlement process is often delayed for dubious reasons “we do not want to show signs of weakness by making the first approach” is often the cry of the lawyers particularly in Europe. This is often a poor assessment of the situation. Also how the approach is made needs to be considered. Often a slightly different approach, CEO to CEO or if the case has many parties using a mediator can produce if not a settlement at least a dialogue which can lead to a settlement. Every case varies but someone with experience of the many different approaches can be an invaluable asset. A litigation manager will assess the issue of settlement in an objective manner something the client and the lawyers may find difficult.

Summary

5. A litigation manager brings to any piece of litigation the following skills.

i. A project management approach to the litigation process to ensure the client’s lawyers are provided with all the information/resources they require.
ii. By means of this project management approach the litigation manager will identify the relevant milestone events/dates and all court deadlines are met.
iii. Budgetary skills –procuring sensible budgets from the clients lawyers and independently reviewing these to ensure they are realistic. This will enable the litigation manager to agree how the case is to be funded.
iv. The ability to identify actions to ensure the legal spend is kept to a minimum.
v. Close liaison with legal advisors in relation to procedural issues thereby short circuiting the process of issuing instructions reducing the burden upon both management and the client’s lawyers.
vi. A completely objective approach to the case.
vii. Minimising the legal spend
viii. The litigation manager will, rarely if ever have more than one case and thus will have the time required to manage the process and will NOT be subject to any competing interests.

If your organisation would like to discover more about this service please contact David Rogers at drog47@btopenworld.com or if the matter is urgent call David on +44 (0)7740 409 053.

Read more about the dispute resolution, expert witness and litigation support services offered by FCL.