Rees Morrison of Hildebrandt writes a blawg named Law Department Management. He had a recent post entitled “Legacy litigation: relative difficulty of managing.” Mr. Morrison writes:
“Legacy litigation – lawsuits arising from discontinued operations or sold assets where the seller remains liable for associated lawsuits – can bedevil law departments. One view is that legacy litigation is easier to manage because the goal is simply to achieve the most efficient result. All you are trying to do is run-off the backlog as quickly and cheaply as possible.
Sometimes this becomes more difficult (or perhaps easier ) because there are fewer witnesses and documents and no client to contend with. A shrinking capital reserve stands as the primary milestone. Also, it can be demoralizing to work on orphan litigation.
On the contrary, litigation from ongoing operations can be easier to resolve than legacy litigation because the former involve relationships with vendors or co-venturers who want to continue the business relationship.”
The post is interesting if slightly off the mark. Legacy litigation is amongst the most difficult litigation to manage. The absence of witnesses, the absence of persons who own or are vested in the business problems, and the uncertainty about what your adversary knows are only the tip of the iceberg. The presence or absence of insurance coverage, disclosure issues for public companies, and the fact that the litigation frequently involves mass torts are other problems. But perhaps the most serious problem, at least many times, is the uncertainty about the corporate history of the entity involved.
What does this have to do with client service? Truth, disclosure and selling. It is shocking to me how many lawyers profess competence in legacy litigation when they don’t know the difference between an asset deal and stock deal, and couldn’t recognize a de facto merger if it hit them in the face. Yet because of prior experience handling the substance of the underlying litigation, the lawyer seeks to take over all problems, leaving the client to suffer for failure to fully appreciate the plethora of issues other than the actual underlying lawsuits. Mr. Morrison’s post provides an opportunity to remember the role of truth in presenting ourselves to our clients and prospective clients. Over selling, especially in this area, can be catastrophic.
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