Introduction: A Dysfunctional Team

• Jurisdiction: United States

Introduction: A Dysfunctional Team

To understand how a functional litigation team performs, we need to consider how a dysfunctional team performs. Many of the MAPing methods taught in this book are implicit in the dysfunctional team’s performance because what this team lacks are precisely the practices I recommend. I assure you: if you apply my MAPing methods, your team won’t suffer from the dysfunctions I am about to describe.

Here is the situation: the litigation team is defending a complex, high-risk patent infringement case. There are four patents asserted by the plaintiff. This plaintiff is a competitor of the defendant. The plaintiff seeks significant money damages and a permanent injunction, which, if granted, would pose a significant threat to the client’s business.

The defending team has four project teams: a noninfringement team (tasked with proving that the defendant’s products don’t infringe the asserted patents), an invalidity team (tasked with proving that the patents are invalid and/or unenforceable), a damages team, and an administrative team (paralegals and support staff). The noninfringement, invalidity, and damages teams are each run by a partner, with assigned associate attorneys. The lead lawyer, another partner, serves as lead trial counsel. If the case goes to trial (and it will), he’ll conduct the jury selection, give the opening statement and closing argument, and examine key witnesses.

There’s no lawyer functioning in the COO (chief operating officer/director) role. The senior paralegal functions as a sort of de facto COO, but he has little clout with either the partners or the client. The partners running the noninfringement, invalidity, and damages teams don’t collaborate. Those teams litigate their respective issues as independent silos. The collective team lacks a clear and coherent direction. There’s no defined mission. There’s no story development. Team members toss around ideas on the trial theory and themes, but nothing crystallizes. Nor do the key members of the team come together to discuss the key issues, the key documents, or the key witnesses.

The lead lawyer is engaged on several cases. He comes in and out of this case when his schedule permits. The team members must scramble to ready him for court appearances, the few depositions he’ll take, and client meetings. When partners need a decision about an important matter, they go directly to this lead lawyer without first consulting each other. His typical response is...