Litigating In-House

Dear Rookie Advocate,

I recently shared with the Law Association of Zambia (LAZ) Junior Lawyers (5 years post admission and under) my experience of being a litigation lawyer in-house. I thought I should share that insight here, in case you missed that mentorship webinar.

By the way, the LAZ Junior Lawyers Committee (JLC) runs a mentorship program within the Association. So, if you are part of the Association and would like to get mentored, please get in touch with the Convenor of the JLC.

Litigating as In-House Counsel

In-house Counsel are lawyers who carry out legal work directly for the employer as opposed to law firm or private practice lawyers who earn money for their firm by working on behalf of multiple clients. Some in-house roles do not require litigation while others do.

1. Your client is also your employer

As an employee of the business, you might sit in some of the decision-making meetings regarding the running of the organisation. When a court matter arises from one of the decisions you participated in making;

a. You need to check your objectivity. If you think you might not be objective enough to represent your client, propose to retain outside counsel to take up the matter. Your client may misunderstand your request for outside counsel. Explain that it is not a matter of incompetence, but objectivity.

b. In the event that you decide on external counsel, tag along on the matter. If it’s a subject you are not entirely confident about, you will learn a lot from external counsel. It will help you to interact with fellow counsel, as well as ensure the strategies and policies of the institution are safeguarded in the case strategy (see point 4 below).

c. Do not be afraid to speak truth to power. When you work in-house, the people with information on a matter might be your superiors. Maintain courtesy, but be candid on the implications of the court case. In some instances, in order to get accurate information, you may need to separate juniors from their superiors and interview them separately. Do not be afraid to “chase” the superiors (who may also be your superiors) from the meeting.

2. Employer is still your client

If you have ever worked in private practice, my advice is do not forget the law firm practices just because you are now in-house. When it comes to litigation, seek instructions from your client in writing.

Your colleagues might find it easier to walk into your office and tell you what happened, listen to them but also emphasize that they write to you. You need to build the case file and you cannot afford to have verbal instructions only. If you think of yourself as someone who won’t always be in that office, it’ll be easier for you to build the file. Even when you take down court notes, write for the benefit of somebody who may take up the case after you. It may be another in-house counsel or outside counsel engaged to take on the matter after you. Keep records for the benefit of the other person.

If you receive instructions via email, print it out and place it on the file.

3. Secure witnesses in good time

One of the things I have learnt working in-house is that a lot of people from other professions are not as comfortable going to court as we are. People are just happy being engineers, human resource practitioners, public relations officers, etc., without having to stand in court as witnesses.

If you interact with your colleagues often, you are a good team player and all-round friendly to them in the absence of court cases, they may trust you a little more when you tell them there is nothing to be afraid of by being a witness in court.

They will be comfortable appearing in court following your reassurances. Even in the event that you’ve retained external counsel, it will be your job to speak to your colleagues and present them as witnesses to external counsel to prepare them for court.

The fact that the witnesses are in house and your colleagues may make them think they have a lot of time. You need to remember that you are the officer of the court and not them. It is your reputation before the courts and not theirs. Push to beat the deadlines and ensure documents are filed into court and served on opposing parties in good time.

4. Take interest in the general business of the institution

It is imperative that you know your institution thoroughly. Know the key policies, rules and strategies of the institution. This will help in the following ways:

a. Knowing all the ins and outs of the institution, the governing policies and documents, you will be able to advise the institution when law suits arise. Even when ex-curia settlements are proposed, you will know the parameters within which your client can operate.

b. If you litigate, your target will be to get determinations of the matter that align with the key policies of the institution.

c. If you retain outside counsel, you will be better placed to advice on the general direction of the institution to aid outside counsel formulate their litigation strategy.

5. Court appearance

Your duties to the court and opposing counsel remain the same whether you are in-house or not. Remember them.

When you place yourself on record, you must let the court know that you are in-house counsel. This goes to the issue of costs. In Zambia, in-house counsel can only claim costs in form of expenses incurred in the prosecution of the matter (disbursements), and not professional fees (profit costs). (See the Ruling  (not Judgment ) in the Supreme Court case of Buttler Sitali v Anti-Corruption Commission Appeal No. 98/2015).

As you build your case record, you must note every travel or printing expense etc., as the matter progresses as these are the expenses you will be able to claim as costs in the event you win the matter or costs are awarded to you.

In making your introduction, I have found that some courts are happy with you just saying you are in-house counsel. Others, however, will ask for your specific designation in the institution.

I hope these tips have been of help. Please share yours in the comments. Excited to learn from your experiences.

Edwina