For much of my career with the Department of Airports and prior to that with Horry County itself, I have been curious how different public law offices deal with litigation. Of course, most municipalities and counties that aren’t self-insured will have counsel appointed by their insurers for tort-based claims. Many entities rely on prepaid legal defense for other types of suits brought against them. But, as with most other aspects of the job, airport lawyering is different.

For one thing, airports are more likely to be plaintiffs than the public entity owner, which typically is sued for civil rights violations, personal injuries on public property, and FOIA disputes, among other types of claims. Airports have all that, but also suffer damage from defective construction projects and nonpaying tenants and airlines. Additionally, there are Part 13 and 16 disputes to defend. The breadth, complexity, and frequency of airport litigation can tempt an airport lawyer to throw up his or her hands and turn the whole lot over to outside counsel.

But lately, I’ve been wondering whether there’s a better way. I imagine most airport law departments are like mine – not large enough to handle all litigation matters in-house. (Some of the larger authorities may well have extensive litigation departments; if any of those lawyers are reading, please write in – I’d love to hear from you how your office is managed when it comes to litigation.) I wonder, however, whether such an "all or nothing" approach is the complete picture. 

Blake Guy of BearingPoint doesn’t think it is. His article for, "Should You Bring Litigation In-House?" discusses the issue of managing and conducting litigation from the vantage point of in-house counsel for private companies, but the insights he shares from the BearingPoint experience are equally applicable (with some modification) to public law offices, including airport legal departments.  Blake points to the "hybrid" model – something between "all litigation handled in-house" (completely impractical for most in-house law departments) and "all referred to outside counsel" (expensive in terms of money and lack of control).

Most public law offices are going to be, like mine, insufficiently funded to handle all litigation in-house. And although with ten years’ experience, I’m not exactly a newly-minted baby lawyer, I do know enough to realize that I’m not an expert in construction defect litigation, and when the damages are creeping up on the million dollar mark I need the resources of a dedicated litigation firm taking the point position. Excluding the insurance-defended suits that still leaves smaller claims against tenants/carriers, FOIA actions, employment suits (except class actions) … there’s a lot of opportunity here for some creative thinking.

Guy advocates first pinpointing your model, and defining its parameters. For purposes of this discussion, we’ll take the model under consideration for HCDA:

  • All non-class action employment claims (excepting those covered by our insurance policies and worker’s compensation claims, which are covered county-wide by outside counsel under a separate agreement);
  • All commercial litigation under a certain amount
  • All landlord/tenant disputes;
  • All FAA proceedings, except as deemed worthy of specialist counsel services ; and
  • FOIA suits.

It might seem like a lot for one in-house counsel to handle, but the recent litigation history suggests that it isn’t as overwhelming as it appears – approximately 50% of the litigation I’ve been involved with over the last ten years, but that’s on average two cases a year. Not exactly overwhelming, even in addition to our "normal" tasks (renegotiating an AUA, anyone?).

One possible source of negative fallout from such a move away from solely outsourced litigation is the political nature of business relationships between the political entity owning the airport and local outside counsel.  Such political concerns might not be properly considered as primary or even determinative, but nevertheless they’re a fact of life and must be negotiated. Here, too, Blake has a suggestion: simply rethink the way you use outside counsel. Consider them as second-chairs, or assign specific subtasks to them (such as taking depositions or handling document review). Let their considerable resources fill in the holes, so to speak.

None of this is to suggest that airport staff counsel should or even could be realistically expected to take over all litigation. Your elected and appointed officials need to be educated on that point – the fine distinction between a trial lawyer (or litigator – and there is most certainly a difference between those two) and a transactional attorney, the differences between your department’s resources and those of outside counsel, and the creative ways in which those resources and talents can be used in combination to the advantage of the airport client.