Jenner & Block

SuperConference: The Wisdom of Going...and Staying..."On the Offensive"

"Be prepared to go at full speed as soon as you file a complaint," said Jenner & Block partner Ross B. Bricker at Wednesday's "On the Offensive" InsideCounsel SuperConference workshop.  "The greatest single advantage that a plaintiff can have is the ability to spend months or years preparing before filing."

Mr. Bricker focused on the importance of in-house corporate counsel seizing, then, maintaining the initiative, for instance, by being the first to file suit in a carefully selected venue, and by developing a case featuring “one theme, one theory, and one understandable story.” He noted that meticulous advance preparation, along with a detailed pre-complaint assessment of necessary legal elements and available evidence, can help focus discovery and control costs. According to Mr. Bricker, the most formidable threat to a defendant is a “well-thought, single-count complaint, filed by a lawyer who knows how he or she is going to prove up the complaint’s allegations and can stand up in court and genuinely say: ‘We’re ready for trial.’“

The veteran trial lawyer observed that the best case for seizing and maintaining the offensive is the "simplest" one. Mr. Bricker added, “In evaluating whether to file suit or not, plan and budget for surprises, and expect a trial. Don't say the case will settle."

These best practices apply equally well to a company that is a defendant as to a plaintiff, noted Mr. Bricker. "You can seize control from a plaintiff," he said. "Just put all your effort in the first place to understanding how you can win. Then, place a laser-focused emphasis on those good reasons."

Mr. Bricker's co-panelists were Paul Dacier, executive vice president and GC of EMC Corporation, and Toshifumi Shibuya, senior vice president of Sumitomo Corporation of America.