By Pamela D. Hans & Christina Yousef / Anderson Kill


A lawsuit of any magnitude can be devastating for your business, whether it manifests its hardship financially or otherwise. The stress of making the right decision for your company’s future can seem insurmountable at times. And just like that, a light at the end of the tunnel: a settlement offer that is reasonable and good for your business. The only problem is that your insurance company will not consent.
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By Reese Arrowsmith, Association of Corporate Counsel (ACC)

Intro: Reese Arrowsmith, who heads legal operations at Campbell Soup Company, is the inaugural chair of the legal operations membership section of the Association of Corporate Counsel (ACC). He spoke with us about his new role at ACC, the growth he’s seen in the field of legal operations and where he thinks it’s going next. His comments have been edited for style and length.

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By Rees Morrison, Altman Weil, Inc.

The Roman god Janus looked both ways at once. That’s an apt metaphor for the divergence in how lawyers look at the use of data in management decisions. Some lawyers look askance at data being used to augment decisions; others look with favor on it. The more clearly that lawyers understand the conflicting bases for their own views and those of their colleagues, the more adroitly they will deal with data in decisions.

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By Aaron Fluss, FRONTEO

Aaron Fluss, the National Director of Managed Review for FRONTEO, talks about the value of creativity during document review and explains why, despite an explosion of data – and costs related to corralling all that data – technology can’t replace the human touch. His remarks have been edited for length and style.
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By Bill Sowinski, David Moran, Wolters Kluwer ELM Solutions

Legal bill reviewers are specialists who can help in-house counsel keep a close eye on the bottom line without spending all day poring over detailed invoice line items. Below, two legal billing and technology veterans, David Moran and Bill Sowinski of ELM Solutions, discuss the obvious, and not so obvious, advantages of third-party legal bill review. Their remarks have been edited for length and style.

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By Lloyd M. Johnson Jr., Chief Legal Executive LLC

For in-house counsel, convincing colleagues in the C-suite —or in the rest of the company, for that matter —is rarely a simple matter of saying, “Do it. I’m the lawyer.” Influence and persuasion require strategic thinking, a deep understanding of a company’s objectives and culture, credibility in the organization, and a keen sense of timing.
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By: Eric J. Barr, Marks Paneth LLP

Shareholder agreements document the intentions of the parties in connection with, among other things, the price to be paid for an ownership interest in the event of a shareholder’s death, disability, retirement or other triggering event. There are four commonly used methods to value a company.

By: Carolyn Casey

As the role of the chief compliance officer (CCO) takes on more prominence, many CEOs and boards must evaluate whether their general counsel (GC) can take on this second role or if the function should be led by a separate executive. After the financial crisis, Enron, and growing privacy, corruption, and whistleblower actions, the glare of the regulatory spotlight seems as certain as sunrise. According to Deloitte, “One of the most important regulatory and policy developments in recent years has been the government’s heightened scrutiny of the effectiveness of an organization’s compliance program in making decisions regarding both liability and cooperation.” It doesn’t take a fortune-teller to predict that corporations will increasingly grapple with the dual-role question.

Are GCs One for Two?

Let’s start by considering the traditional role of lawyers. Lawyers give legal advice and advocate to gain the best outcomes for their clients. When a government subpoena or legal claim arrives on their desk, they gear up to do whatever is necessary to avoid costly judgments or fines, reputation hits and even jail time for their C-suite colleagues. They are protectors and risk managers.

Of course, lawyers also interpret regulatory requirements and things like

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By Laura Kibbe and Shelley Brown, Esq., RVM Enterprises, Inc.

One of the greatest challenges facing in-house counsel today is the soaring cost of litigation. One of the primary contributors to those extraordinary costs is the ever-growing creation of data and data sources, resulting in the unpredictability of e-discovery. For years the e-discovery industry has been exploring alternative fee arrangements (AFAs). The AFA methodology was created to increase predictability in litigation-related spend. The foundation is simple: Provide cost predictability and the ability to create future budgets based on historical spend. While AFAs have certainly met their cost predictability goals, in an age of complex electronic discovery, it raises a question as to whether or not the model has sacrificed expertise and strategies that provide valuable, high-quality solutions for an overall lower cost. We think so.

Rather than relying upon AFAs alone as a solution to the budget problem, perhaps we should look toward the use of more strategic methodologies to better control costs. Strategic alternative fee arrangements (SAFAs) could be the answer. In the e-discovery world, AFAs often take the form of per document charges, an all-in processing flat fee or some combination thereof. But those AFAs do not incentivize the service provider to reduce volume (and therefore cost). Instead, we should look to implementing early case assessment and litigation readiness strategies to help mitigate e-discovery costs. At first blush, the higher initial spend in per hour analytics or consulting may seem counterintuitive to cost savings, but if the exercise results in a reduction of the reviewable universe by 40 to 50 percent, total case cost goes down. The perfect SAFA model would combine the cost-predictability goals of the AFA while encouraging new strategic approaches to traditional tasks, resulting not only in a lower total case cost but also in giving the case team a strategic advantage over their adversary. Knowing their case early on can direct case strategy.

Utopia or Reality: A New Approach

The traditional electronic discovery budget looks like a laundry list of unit prices and assumes, for the most part, that a linear process will be followed: collection, processing, search terms, maybe analytics and a review of the resulting data. In this model, ensuring that each unit price is as low as it can be will lower costs and create predictability, but at what effect on total case cost? What if the collected data contained information that was particularly harmful to your client’s theory of the case? What if the collected data does not include a key custodian? What if the collection was generally overbroad due to similarly overbroad corporate data retention policies or nonexistent litigation readiness plans? In failing to take a strategic look at what the case team hopes to accomplish in discovery, those unit prices often result in spend which could have been avoided altogether. In addition, that traditional model does not necessarily identify the key documents early enough in the case to assist the client in reevaluating its strategy.

The analytics tools that are available today make it possible to spend time and resources on a true early case assessment that can result in an overall lower total case cost. Ultimately even greater savings and efficiencies could be achieved. As with law firms, engaging an experienced partner early on to help formulate strategy is important. Delegating the execution of that strategy to more cost-effective resources and engaging a consultant with specific e-discovery subject-matter expertise (and likely a higher billable rate) broad enough to span information governance, litigation readiness and e-discovery can reduce downstream discovery spend.
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