Moreover, recent large-scale cyber attacks on companies like Optus and Medibank have shone the spotlight on data protection and privacy, with impacted customers already launching class actions for data breaches, he noted.

“We’re going to see a bit of change in cyber space,” he told Lawyers Weekly.

“Therefore, it will be crucial for businesses to maintain their internal processes and systems and ensure that they’re complying with the law as it stands. They also need to be aware of changes in law in other jurisdictions and how that could affect Australian businesses.”

At the summit, Kapodistrias and a panel of speakers will unpack the latest litigation trends, provide regulatory updates, and offer insights on how in-house counsel could prepare their business for litigation while considering ethical implications.

Kapodistrias has won or been a finalist at multiple awards over a number of years run by Lawyers Weekly, including the Australian Law Awards, Corporate Counsel Awards, and 30 Under 30 Awards.

Helping your business stay out of the spotlight

There are a number of strategies in-house counsel could implement to help their organisation avoid litigation.

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Depending on the circumstances, Kapodistrias said, a well-drafted contract could help the organisation at the outset. It should detail clear procedures on what would happen if a dispute arose and mechanisms to escalate any conversations and issues.

At the same time, early engagement with business partners when a project commences could assist in-house counsel manage and control legal risks.

“In-house counsel needs to provide advice so project owners and executives can make decisions around deals while mitigating and managing risks,” Kapodistrias said.

How to navigate litigation

For organisations facing litigation, in-house counsel would have to determine who is required to be involved in the process and the decision making before progressing to the next step.

“Establish clear lines of communication,” Kapodistrias advised.

“Secondly, ensure that, particularly where external counsel is involved, you are in control. In order to present it in the best way possible, funnel all instructions from the business to your external counsel.”

Seeking support from the IT department would be helpful, particularly during the discovery process, in order to be able to sift through old systems and servers that may no longer be in use, he recommended.

Determining whether legal teams require additional resourcing to assist with e-discovery would prove useful, too, he added.

“It might not necessarily be obvious in the first instance, but this collaboration is going to be important,” Kapodistrias said.

Designing a clear roadmap at the outset could help in-house counsel teams determine whether they require external counsel for additional support, Kapodistrias noted.

“Collaborate with them initially to understand your position and the likelihood of success,” he said.

Following this, the two parties could discuss the next steps and whether a settlement would be the most appropriate option.

“From there, you can decide the best path forward from a financial perspective. For example, if a settlement is the best option, find out what’s required,” Kapodistrias stated.

Ethical considerations

Throughout the process, in-house legal departments must maintain professional privilege around any advice they provide in contemplation of this litigation. They must only disclose information to relevant internal parties, he flagged.

Furthermore, it is critical for the legal team to advise businesses to retain all information and relevant documents for future reference.

Kapodistrias concluded: “It’s important for in-house teams to work effectively with anyone on the opposing side because we don’t want to drag things out from a cost perspective for anyone.

“Maintaining a fair ground as best as you can in these circumstances would be appropriate.”

To hear more from Theo Kapodistrias about how you can navigate the complex world of litigation and mitigate risk, come along to the Corporate Counsel Summit 2024.

It will be held on Thursday, 2 May, at The Star, Sydney.

Click here to book tickets and don’t miss out!

For more information, including speakers and agenda, click here.