FEATURE
Planning Enables Legal Departments to Handle PandemicRelated Litigation By TIMOTHY FAZIO It is not really true that no one saw the COVID-19 pandemic coming. Many lawyers, insurers, healthcare providers and others involved in risk management knew it was coming, or at least they knew something like it was coming. Game-changing tragedies are nothing new. Risk managers have been preparing their operations to deal with the unknown for a long time — through infrastructure, financial hedging, legal protections and other tactics. In-house law departments are in a unique position to minimize the effects on a company from events like the COVID-19 pandemic by building a coordinated and thoughtful approach to law department operations. Whether a single general counsel or a global in-house team, law departments deal with day-to-day legal and strategic questions to help the company grow and function safely and in compliance with law. In-house attorneys manage “operations” work related to contract issues (e.g., negotiation, interpretation and termination strategy), pre-litigation dispute resolution, risk management and other business-centric duties designed to
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grow and safeguard the company. Operations attorneys are not often pure litigators. Although segregation of operations and litigation duties make practical sense, it can lead to substantial gaps in the overall risk profile for successfully handling disputes. To minimize risk, savvy operations attorneys routinely partner with litigators to build in strategic protections at the beginning of a business decision or a venture’s life cycle. When building a comprehensive litigation risk mitigation strategy, operations attorneys benefit from thinking like litigators. Litigators provide valuable insight and experience into what obstacles can be erected or torn down at the initial business decision stage to limit disputes generally, as well as putting the company in position to efficiently win a dispute through effective negotiation or a calculated dispute resolution technique. Here are some strategies to develop with litigation counsel. Follow Core Practices and Goals: Adhering to a core understanding of strategic goals, best practices and industry standards
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helps avoid conflicting approaches and unexpected risk. The operations function must analyze each opportunity or threat by thinking in terms of the core understanding and vision of the company, and how addressing the matter at hand will further it or erode it. Without a global understanding of priorities, operations can inadvertently increase litigation risk by failing to account for abnormal events. Some common mistakes are permitting the business to deal with litigious companies or within a notoriously litigious or government-scrutinized industry; permitting receivables to grow too BACK TO CONTENTS
