Page 16 - CCCA 239285 Magazine_Fall 2015
P. 16
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Feature
Preventive litigation is the new mantra driving in-house legal teams,
as lawyers look for ways to fend off lawsuits before they begin.
Desjardins points out that once a contract is negotiated, the
In some cases, such as pharmacare and construction, where
disputes are routine and often frequent, litigation is baked into
the cost of doing business. In other industries, particularly challenge is transferring that knowledge to the team tasked with
oversight. His department has one of the staff lawyers involved
those in the business to consumer space, however, litigation is in negotiating a contract available on call to respond to the team
often an unwelcome development that pits companies against when it has questions or needs legal support.
their clients. So the ability of companies to prevent or reduce RBC’s Jimdar adds, “if you have in-
the likelihood of disputes early in the game is critical. house counsel at the table early on,
Jeff Paquin, Chief Counsel and Director, Legal Business Op- it helps to really detect potential risk.
erations for General Motors in the U.S. says when it comes to it’s an opportunity for lawyers to re-
practising litigation prevention he thinks “Canada is probably 5 ally learn the business.”
to 10 years behind [the U.S.].” At BMO, Lang and the communica-
However, Paquin, who also consults with companies on litiga- tions department spent time reviewing
tion and oversees the Chief Litigation Counsel Association, says existing customer documentation, forms Caroline jimdar,
Senior Counsel,
that technology is making it easier for companies to understand and contracts, putting them into plain Royal Bank of Canada
litigation patterns and analyze internal data to identify weak spots. language, and “making sure they are as
When building a litigation preven- customer friendly as can be.”
tion program, he advises, there is “no
cookie-cutter approach. The worst escaLaTion and de-escaLaTion
thing you can do is try to copy some- Bombardier’s Desjardins says an escalation process is essential
one else.” Rather, companies need to to help identify potential future litigation issues and resolve is-
do their own internal soul searching sues before they become too contentious between parties. For
and analysis to develop systems and example, if a problem arises with a long-time supplier, he says
jeff Paquin, Chief Counsel processes that match their operations “it goes up the chain.” That policy helps employees resolve mat-
& director, Legal and client base, whether it’s consumer ters. “The last thing they want is their
Business Operations,
General Motors u.S. focused or business to business. “Every respective ceo getting into their
organization is unique,” he warns. mess. There’s an incentive to fnd the
Nonetheless, there are some general principles to follow. right solution.”
De-escalating and turning down the
earLy Warning sysTeMs temperature on contentious issues with
The frst thing legal departments need to do, he says, is perfect customers or suppliers is also impor-
their early warning systems. That means analyzing and audit- tant, says RBC’s Jimdar. Sometimes that daniel desjardins,
SVP, GC &
ing where the litigation risks lie and looking for ways to reduce means leaving legal counsel on the side- Corporate Secretary,
them. It includes externally, for example, contracts with cus- lines to act as simply a sounding board Bombardier Inc.
tomers, and internally, for example, employment harassment while the line managers work out a solu-
reporting polices. tion. “If the lawyers immediately come to the table, it seems as if
When it comes to evaluating external risks, he explains, one it is escalating,” she explains. “You don’t want it to blow up into
natural place to start is the customer service department, espe- something larger than it needs to be.”
cially for consumer-facing companies. It’s often the canary in
the coal mine when it comes to alerting companies to potential earLy case assessMenT
disputes based on call volumes and patterns. For example, you Next is putting in place a strong early case assessment system.
can see “historical trends,” which may indicate a growing prob- One industry that in-house lawyers can learn from when it
lem, such as complaints about a product or service, which could comes to litigation prevention is construction. Few multi-mil-
manifest into litigation. lion projects get built without some type of dispute arising.
Contracts is another area to watch because the management Steve Richards, GC of PCL Constructors Inc., is used to dis-
of them often gets companies into trouble. putes. “When it gets to seven fgures, people will drop the mitts
Daniel Desjardins, SVP, GC and Corporate Secretary at Bom- and go at it,” says Richards.
bardier Inc., says in his industry the contracts are long and “cus- PCL, a privately held company that is one of the world’s larg-
tomer and suppliers will follow us for many years.” Hence the est construction frms, has enshrined a “major disputes resolu-
need to maintain strong relations. tion policy” into its process, which Richards says are “must dos.”
16 CCCa MaGazIne | FaLL 2015 auTOMne
{
Feature
Preventive litigation is the new mantra driving in-house legal teams,
as lawyers look for ways to fend off lawsuits before they begin.
Desjardins points out that once a contract is negotiated, the
In some cases, such as pharmacare and construction, where
disputes are routine and often frequent, litigation is baked into
the cost of doing business. In other industries, particularly challenge is transferring that knowledge to the team tasked with
oversight. His department has one of the staff lawyers involved
those in the business to consumer space, however, litigation is in negotiating a contract available on call to respond to the team
often an unwelcome development that pits companies against when it has questions or needs legal support.
their clients. So the ability of companies to prevent or reduce RBC’s Jimdar adds, “if you have in-
the likelihood of disputes early in the game is critical. house counsel at the table early on,
Jeff Paquin, Chief Counsel and Director, Legal Business Op- it helps to really detect potential risk.
erations for General Motors in the U.S. says when it comes to it’s an opportunity for lawyers to re-
practising litigation prevention he thinks “Canada is probably 5 ally learn the business.”
to 10 years behind [the U.S.].” At BMO, Lang and the communica-
However, Paquin, who also consults with companies on litiga- tions department spent time reviewing
tion and oversees the Chief Litigation Counsel Association, says existing customer documentation, forms Caroline jimdar,
Senior Counsel,
that technology is making it easier for companies to understand and contracts, putting them into plain Royal Bank of Canada
litigation patterns and analyze internal data to identify weak spots. language, and “making sure they are as
When building a litigation preven- customer friendly as can be.”
tion program, he advises, there is “no
cookie-cutter approach. The worst escaLaTion and de-escaLaTion
thing you can do is try to copy some- Bombardier’s Desjardins says an escalation process is essential
one else.” Rather, companies need to to help identify potential future litigation issues and resolve is-
do their own internal soul searching sues before they become too contentious between parties. For
and analysis to develop systems and example, if a problem arises with a long-time supplier, he says
jeff Paquin, Chief Counsel processes that match their operations “it goes up the chain.” That policy helps employees resolve mat-
& director, Legal and client base, whether it’s consumer ters. “The last thing they want is their
Business Operations,
General Motors u.S. focused or business to business. “Every respective ceo getting into their
organization is unique,” he warns. mess. There’s an incentive to fnd the
Nonetheless, there are some general principles to follow. right solution.”
De-escalating and turning down the
earLy Warning sysTeMs temperature on contentious issues with
The frst thing legal departments need to do, he says, is perfect customers or suppliers is also impor-
their early warning systems. That means analyzing and audit- tant, says RBC’s Jimdar. Sometimes that daniel desjardins,
SVP, GC &
ing where the litigation risks lie and looking for ways to reduce means leaving legal counsel on the side- Corporate Secretary,
them. It includes externally, for example, contracts with cus- lines to act as simply a sounding board Bombardier Inc.
tomers, and internally, for example, employment harassment while the line managers work out a solu-
reporting polices. tion. “If the lawyers immediately come to the table, it seems as if
When it comes to evaluating external risks, he explains, one it is escalating,” she explains. “You don’t want it to blow up into
natural place to start is the customer service department, espe- something larger than it needs to be.”
cially for consumer-facing companies. It’s often the canary in
the coal mine when it comes to alerting companies to potential earLy case assessMenT
disputes based on call volumes and patterns. For example, you Next is putting in place a strong early case assessment system.
can see “historical trends,” which may indicate a growing prob- One industry that in-house lawyers can learn from when it
lem, such as complaints about a product or service, which could comes to litigation prevention is construction. Few multi-mil-
manifest into litigation. lion projects get built without some type of dispute arising.
Contracts is another area to watch because the management Steve Richards, GC of PCL Constructors Inc., is used to dis-
of them often gets companies into trouble. putes. “When it gets to seven fgures, people will drop the mitts
Daniel Desjardins, SVP, GC and Corporate Secretary at Bom- and go at it,” says Richards.
bardier Inc., says in his industry the contracts are long and “cus- PCL, a privately held company that is one of the world’s larg-
tomer and suppliers will follow us for many years.” Hence the est construction frms, has enshrined a “major disputes resolu-
need to maintain strong relations. tion policy” into its process, which Richards says are “must dos.”
16 CCCa MaGazIne | FaLL 2015 auTOMne
