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 law.com, "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.

This post at NY Lawyer tells the tale of two brave attorneys in private practice who accepted the invitation to speak at a GC-oriented CLE. What happened? The attorneys took the brunt of the GCs’ frustration for all law firms, everywhere. Among the GCs complaints:

  • Not understanding the culture and business model of the client company. UPS’s GC made the point quite effectively, "… using as an example the company’s brown delivery vehicles. ‘They’re not called trucks,’ she said. ‘They’re called package cars. If you call them trucks, you don’t understand the nature of our business.’"
  • Not winning. Charles Kalil, GC for Dow, put it bluntly: "Winning is the most important metric."
  • Failing to provide prompt invoicing and, as a corollary, being inflexible on pricing.

There are some good lessons for government attorneys and private practice firms that do work for government entities in this article. The takeaway, from my perspective, is that yes, we can all get along, but we need to understand the nature of this relationship first.

Creative Uses of Gmail

December 7, 2005

Evan Schaeffer in his Trial Practice blog talks about one clever use (storing advance sheets) for the service’s ridiculously huge storage capacity. I’ve got some other ideas, too.

  1. Set up an account for newsletters, news alerts, etc.. When they arrive, create rules to channel each topic into a different label (i.e., one for "AAAE Airport Alerts," one for your "Daily Security Briefings," one for Westlaw(tm) news alerts for <ti(airport)>, etc.).
  2. When you do research on the paid services, have a copy sent to your Gmail address. Tag each result with an appropriate research label (i.e., "rates and charges," "Part 16," "employment – discrimination," "USERRA," etc.). Then you’ll have a readily accessible copy when you’re away from your office computer, as well.
  3. Used in conjunction with Google’s desktop search engine, Gmail can produce powerful results in searching emails.
  4. Sign up for Solosez. I know – I’m not in solo practice. (I was, at one time, contemplating it, however.) But the wealth of information that gets exchanged on a daily basis on that list is astounding. Use the labels to categorize email conversations as they come in (i.e., "wills," etc.) This is a great source of information for me for those inevitable cocktail-party questions and (as often happens) the employee who drops in and says, "Got a sec? I know this isn’t your specialty but …" And if you’re ever contemplating hanging out your own shingle? You definitely need this list. It’s like your own little virtual firm.
  5. Ditto Technolawyer.
  6. Create a separate account for keeping in touch with family, friends, your kids, your kids’ teachers. Each person has their own label. Each conversation is maintained as a discrete whole. Searching is powerfully simple. You will never lose another email again. Ever.

Yes, I’m a Gmail fan.

Why, then, the astute among you will ask, do you have a Hotmail account on your blog’s "email me" link? Excellent questions, friends. Apparently, for some reason, when I signed up for this account, I used the Hotmail address (which wasn’t getting much play, as I’d long since gravitated to Gmail). Now, it won’t let me change back. *sigh*

I’m working on it. Til then, use the provided link to suggest article topics, rant, question, and/or contact me about writing a guest article. I’d love to have this blog eventually evolve into one that regularly features other articles by other airport lawyers on topics that interest them.

Now Boarding, at Gate 7 …

December 5, 2005

Sayeth the Greatest American Lawyer:

But, I told her it was more important for people to think of me whenever they have a legal problem. I explained to her that I want to be the airport where every legal problem takes off from. It it is within my area of expertise I will handle it. If it is not within my area of expertise, I will send the matter to the appropriate attorney who operates consistently with my value billing model thereby strengthening my relationship with other attorneys in town.

"Thinking about your Law Firm as the Airport from which all Legal Matters Take Off," GAL, posted 12/1/2005. (Thanks to Ed. at Blawg Review for the kind head’s-up.) And … it got me thinking (as these things are wont to do).

Read the rest of this entry »