How to Train Your Litigator A Guide to Cost Certainty and Procedural Predictability for In-House Counsel

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1 How to Train Your Litigator A Guide to Cost Certainty and Procedural Predictability for In-House Counsel Presenters: Dayna J. Christian Nicholas M. M. Drum Paige B. Spratt

2 Courtesy of the Portland Business Journal

3 Courtesy of the Portland Business Journal

4 Controlling Litigation Costs Before a Dispute Arises: Arbitration Clauses Pros and Cons Forum Options Clause Options Attorneys Fees Provisions

5 Controlling Litigation Costs After a Dispute Arises: Fixed Fee Arrangements Contingency Fee Blended and Reduced Hourly Rates Not-To-Exceed Budgets Hybrid Fee Structure Limited Scope Engagements

6 How to Train Your Litigator: Before a Dispute Arises

7 Arbitration Clauses Pros: Reliable (choose your fact finder) Speedy and efficient Informal Economical (maybe?) Convenient/certain hearing dates Private Finality Cons: Splitting the baby Arbitrator quality Is it really more economical? Lack of transparency Limited discovery Finality (what if the arbitrator gets it really wrong?)

8 Arbitration Clauses When does arbitration make sense? Amount at issue Type of claim Relationship between the parties Need privacy Need a resolution quickly

9 Arbitration Clauses Focus on Drafting Arbitration Clauses that Actually Cut Costs: Two biggest costs of litigation (in our experience) Discovery Motions Drafting Options: Optional or mandatory Prerequisites Procedural Limitations Model cost saving procedures available Threshold Limitations

10 AAA (Fast Track) JAMS (Streamlined) Arbitration Service of Portland Filing Fees $1,275 ($10k - $75k at issue) Initial $400 case management fee Less than $100K (2 parties) $400 Timing 45 days No limit fast response requirements (7 days) Parties set pace Discovery No depos; limited to prehearing disclosures 1 depo (can agree to more); limited to productions of documents that are directly related to significant issues Full discovery (governed by ORCPs) Dispositive Motions None Allowed if moving party submits a brief letter explaining the merits of motion and potential cost savings Allowed (ORCPs) Prehearing Disclosures Must disclose exhibits and affidavits relied on in hearing Must disclose exhibits and affidavits relied on in hearing Prehearing Statement of Proof to prevent trial by ambush Hearing 1 day hearing (2 days max) Varies Varies

11 Arbitration Forum AAA: https://www.adr.org/aaa/faces/rules Fast Track Procedures under Construction Rules Commercial and Complex Rules JAMS: Judicial Arbitration and Mediation Services Arbitration Service of Portland:

12 Arbitration Forum

13 Arbitration Forum

14 Arbitration Forum

15 Attorneys Fee Provisions When are prevailing party fee awards appropriate? ORS RCW Litigation incentive or disincentive

16 How to Train Your Litigator: After a Dispute Arises

17 Alternative Fee Arrangements Fixed Fee: Quality Volume Supervision

18 Alternative Fee Arrangements Contingency: Primarily plaintiff non-economic damages cases Asserted counterclaims Incentives Standard fee sharing rates

19 Alternative Fee Arrangements Blended and Reduced Hourly Rates: Volume of cases Length of dispute Do they actually reduce litigation costs? Floor v. Ceiling Incentives or disincentives

20 Alternative Fee Arrangements Not-to-exceed budget: Milestones Task driven Incentives Predictability Flexibility

21 Alternative Fee Arrangements Hybrid Fee Structure: When do you stop the clock and turn on the incentive based billing? Milestones Not-to-exceed budgets Collars Settlement discussions and conflict of interest

22 Alternative Fee Arrangements Limited Scope Engagement: Limited to task Limited to role Ethical considerations RPC 1.2(b) A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.

23 Summary Know your team Leverage the fee pyramid Appropriate task assignments No duplicative billing Look for freebies Clear strategy and scope Quality communication Trusted advisors

24 How to Train Your Litigator A Guide to Cost Certainty and Procedural Predictability for In-House Counsel Presenters: Dayna J. Christian Nicholas M. M. Drum Paige B. Spratt

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