Litigators at power-house organizations discuss advantages of managing litigation matters in-house
While litigation has traditionally been one area that legal departments frequently outsource to external law firms, many organizations are building in-house litigation teams — not only to save costs but also to have greater control and closer alignment with the business objectives of the entire organization. Financial institutions, insurance companies and telecoms providers have all boosted internal litigation teams in recent years.
At Sun Life Financial, more than half of Canadian litigation cases are managed in-house by a team of 40 litigation lawyers, paralegals and assistants who are spread among three offices in Ontario and Quebec.
“There is no greater expert in the business of the company than the in-house team,” says Sandra Perri, vice president and associate general counsel at Sun Life Financial. “We bring a deep understanding of the company and the business we support, as well as the company’s broader strategic priorities and objectives so we can align with those.” Understanding the company’s tolerance for risk is another advantage that the in-house team brings, together with the ability to bring a business operations mindset.
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“Leveraging data and technology to improve workflow, be innovative and optimize resources in the team are all things we do in-house that can’t as easily be done by external law firms,” adds Perri.
As Sun Life Financial does not have litigation teams outside of Ontario and Quebec, law firm partners are regularly called upon to help with litigation matters in other jurisdictions. Perri’s team also partners with external counsel on complex litigation cases and class actions in all geographical regions.
At Telus, a team of nine lawyers and paralegals is spread across the country and manages a diverse range of litigation including e-discovery and employment matters. A new litigation lawyer just joined the team in April to help meet the growing need. When external counsel is retained to provide a local presence in a specific city or province, the in-house team works closely with external partners to establish a litigation strategy, approve court proceedings and any documents that will be filed and sent on behalf of Telus.
“When we use external counsel, it’s important that we remain very close to litigation matters to ensure we leverage the knowledge we have in-house about the culture of our business and corporate priorities,” says Delbie Desharnais, associate general counsel, litigation at Telus. “Our model allows us to keep the team lean and efficient and make sure we focus our efforts on matters that have the potential to significantly impact Telus.” The model also enables Desharnais and her team to identify and mitigate risk in order to prevent litigation when possible, and ultimately reduce external spend.
Telus’ litigation team handles matters across the country, ranging from class actions to real estate and employment matters. During her nine years at Telus, Desharnais has observed an increase in the number of significant litigation matters such as class actions and intellectual property claims.
Aviva Canada’s internal litigation team — known as Aviva Trial Lawyers — has grown to 90 from 80 people in the past two years, spread across eight offices in Canada. Around 30 per cent of Aviva’s litigation was managed by the in-house team in 2019.
“Keeping it in-house makes it less expensive, but that isn’t what makes it successful,” says Lianne Furlong, vice president and chief litigation counsel at Aviva Trial Lawyers. “Aviva Trial Lawyers has proven itself to cost less and deliver the same results as external counsel. When it comes to developing lawyers in-house, you have the opportunity to get to know other parts of the company so you can develop expertise in other areas and experience different roles in the company, which you couldn’t do in a private law firm.”
Unlike many legal departments, Aviva Trial Lawyers has been sending in-house counsel to court to run trials since 2016, with cases including auto accidents, medical malpractice, property damage and sexual assault. Furlong is deeply involved in training young lawyers, and they are often given the opportunity to attend trial as second chair. Since COVID-19 closed courtrooms around the country, Furlong’s team has been trying to keep files moving by doing discovery, mediation and pretrials by video, which raises new risks.
“We need to be mindful that whatever platform we choose to use is secure, the information is confidential, and data is protected,” says Furlong. “We are leaning on our IT teams to ensure the platforms we use are secure and we are taking the right steps to protect customers. Aviva is very good at managing that,” she adds.
BMO Financial Group has a litigation practice management group that brings together all litigators from the bank’s global locations in Toronto, Montreal, Chicago and London in addition to a litigation e-discovery team, which helps to quickly assess litigation risk. The practice management group ensures that work is consistent and efficient in all locations.
“As an organization, we put our customers at the centre of everything we do and that includes how we approach dispute resolution and litigation as well,” says Pascale Elharrar, associate general counsel, wealth management at BMO Financial Group. “To us, that means that we’re being thoughtful, we don’t apply a one-size-fits-all approach to case management and we challenge ourselves and our external partners to think about different ways of doing things, which includes resolving matters early when it’s the right thing to do for our customers and our business.” Working closely with business teams within the bank enables the litigation teams to identify risks and trends, which often results in resolving issues before they get to litigation.
Helping customers and protecting the bank’s brand are the two guiding principles for BMO, so maintaining in-house litigation teams is key.
“We keep those guiding principles in mind as we approach any matter on litigation and pre-litigation,” says Reena Lalji, senior litigation counsel, Canadian personal and commercial banking at BMO Financial Group. With every decision, the in-house litigation teams at BMO take into consideration reputational and regulatory risk in addition to litigation.
“Because we are able to have that fulsome picture of all the moving parts of the business — not only litigation — we are able to balance different considerations to properly guide all our business groups to the right decisions,” says Lalji.