Page 14 - CCCA 239285 Magazine_Fall 2015

{ Feature }

When adrian Lang left the comfortable confnes LiTiga
of a Bay street law frm to pursue an in-house
PracTising
litigation job at the Bank of Montreal slightly more
than two years ago, she quickly concluded that
lawsuits were the bane of the bank’s existence.

PrevenTive

“ ou don’t want to be in litigation with your customer,” says they begin and reduce the chances of an issue blowing up into
Lang, Associate GC at BMO. “That’s not a happy place for a litigation cause celebre. Everything from early detection and
Yanybody.” warning systems to early case assessment, analytics, escalation
So Lang’s attention turned from litigation pursuit to litiga- processes and dispute resolution programs are being deployed
tion prevention: “The real value is making sure litigation doesn’t in an effort to reduce the threat of litigation. Tion
come up in the frst place.” “No one wants to spend fees on litigation,” says Caroline
She implemented a number of changes at the bank to rein Jimdar, Senior Counsel at Royal Bank of Canada, who is re-
in litigation costs and help nip cases in the bud before they be- sponsible for litigation relating to personal and commercial
come a bigger litigation headache. banking in Canada and the Caribbean. “We’re in the business
“What we quickly realized is that when of having positive relationships with the business community.”
cases get to court or in the court sys- However, it doesn’t always work out that way, and many or-
tem, they will languish for long peri- ganizations fnd themselves locking horns with clients, suppli-
ods. That’s not where we want to be,” ers and customers.
says the affable Lang. “We don’t want it The 2015 Norton Rose Fulbright survey on global trends in
to be a diffcult process. We want to make litigation shows that lawsuits remain a primary concern among
it more streamlined and get to a resolu- in-house lawyers. The survey of more than 800 organizations
adrian Lang, tion more quickly.” operating in 26 countries found that 75% of companies re-
associate GC, BMO The bank introduced a voluntary al- port being named as a defendant in a lawsuit in the past year.
ternative dispute resolution program Of that, 33% say they are defendants in between one and fve
that is offered to clients and paid for by the bank. “We weren’t cases. A further 9% report they are defending between 5 and
sure what the take would be in terms of the perception from 20 cases, while 20% say they are defending between 21 and 50
plaintiff’s lawyers,” she explains. “The response has been over- cases. More than one in 10 report they are defendants in at least
whelmingly positive. It demonstrates that the process must ap- 51 ongoing cases. Those cases are also expensive. Almost one in
pear fair because we had a really great response.” four cases fled against companies exceed US$20 million.
She was able to reduce the bank’s overall caseload by 20% In terms of suing, 54% of companies report that they have
and has implemented measures to increase the use of alterna- launched a lawsuit in the past year, and 35% report an ongoing
tive fee arrangements to manage litigation costs. arbitration pending against a company.
Lang and her BMO colleagues’ efforts at warding off litiga- What’s driving the litigation bus? The top three legal disputes
tion are indicative of what’s taking place in the corporate world. concerning in-house lawyers were regulatory, contract and em-
Preventive litigation is the new mantra driving in-house le- ployment law, the latter of which ranked as the top concern at
gal teams, as lawyers look for ways to fend off lawsuits before Canadian frms that were surveyed.

14 CCCa MaGazIne | FaLL 2015 auTOMne