Litigation has become part of the business landscape for most companies. Companies that once faced little or no litigation now find themselves defending against "bet the company" litigation. Often the in-house attorneys are stretched too thin to guide the day-to-day management and coordination of the voluminous litigation or, in some instances, are corporate lawyers not fully familiar with the ins and outs of litigation.
Faced with the challenge of managing their growing and increasingly complex litigation, many companies benefit from employing outside counsel with experience managing and coordinating vast litigation. These counsel, usually referred to as "national coordinating counsel," provide a link between the company, its litigation and the local counsel who handle the day-to-day litigation issues that arise in individual cases.
Utilizing a national coordinating counsel is effective in a number of situations, the most obvious of which is mass tort litigation, i.e., when the company faces a number of similar personal injury or property damage claims arising from the same product or substance, pending in multiple jurisdictions and possibly in a federal or state multidistrict litigation (MDL). The classic example of a mass tort is the asbestos litigation.
Similarly, national coordinating counsel can be useful in serial tort litigation, such as when the company has a number of lawsuits involving similar products alleged to have caused injury or property damage. Serial tort litigation involves a number of cases arising from similar products or exposure, but each case has distinct facts as to how the injury or property damage occurred, such as when safety devices are removed, and result in a variety of different types of industrial accidents, or automotive defect cases. The company will have many similar cases, but unlike mass tort cases, the alleged defect and manner of injury usually differ from case to case.
The decision to retain a national coordinating counsel should not be limited to mass tort or serial tort litigation. A company with a number of cases involving common corporate issues or witnesses may benefit from having a national coordinating counsel oversee the consistency with which the corporate issues are presented and corporate witnesses testify across diverse litigation.
National coordinating counsel can develop an understanding of the company's business, develop the company's affirmative defense "story" and interview and prepare corporate witnesses so that the witnesses' testimony is consistent with the company's defense strategy. While the lawyer cannot change the facts, he or she should help witnesses learn to withstand the pressure of cross-examination, deal with difficult facts and be as credible as possible.
National coordinating counsel may also be employed to oversee document productions by learning how the company retains its potentially discoverable documents and develop a streamlined approach for searching, reviewing and producing those documents. This results in efficiency and expediency in responding to document production, and should result in substantial cost savings to the company because several different firms are not involved in seeking the same documents.
Many businesses can benefit
Businesses with multiple facilities facing litigation, such as medical service providers that offer services at multiple sites throughout a region or nationally, will benefit from having national coordinating counsel oversee their litigation and corporate defense issues, and help minimize the risk that parent corporations will be pulled into local litigation.
Any company facing multiple cases with repetitive technical issues will benefit from having a national coordinating counsel develop one set of experts and outlines for the experts' general testimony. Counsel can also develop trial outlines for expert and corporate witness testimony, to provide a consistent corporate story and to limit the amount of work each trial attorney will need to prepare for his or her respective trials.
There are pitfalls a company can face if it does not have an effective national coordinating counsel. Counsel in different jurisdictions may unwittingly prepare corporate witnesses to present inconsistent defenses on behalf of the company. Discovery responses may not be consistent across jurisdictions. Defense strategies may be developed to win one case, while causing the company to take a position contrary to its interests in a number of others. Such results occur because no one lawyer or law firm is familiar with all cases and no unified defense strategy has been developed and implemented across all cases.
A key substantive determining factor for assessing the need for a national coordinating counsel is consistency: If the company will benefit from a consistent corporate story across cases, needs a consistent strategy for its defense, will have common witnesses in several types of cases or can benefit from the use of common experts across cases, then the company will benefit from having a national coordinating counsel. Consistency is critical because it prevents opposing counsel from poking holes in evidence based upon inconsistencies.
If the need for such consistency in a company's litigation is not recognized, even the most seemingly minor litigation mistake can have far-reaching effects. An expert may be retained by local counsel in one case to perform an independent medical examination and give general opinions that the plaintiff's particular injury was not related to a product manufactured by the client. The expert may seem ideal because she believes the product does not cause the type of injury suffered by the plaintiff.
Without having knowledge that the company is facing claims that the product caused another type of injury, the local counsel will be satisfied he has found an appropriate expert for the lawsuit he is defending. However, after probing the expert's opinions further, it may be revealed that the expert holds the opinion that the client's product could cause other types of injury. National coordinating counsel, with knowledge of the full scope of litigation involving the product, would understand the need to bypass this expert because her general scientific opinions diverge from the company's scientific defense strategy for the company.
Best to start early
Rarely does a company, regardless of its size and sophistication, recognize the need for a national coordinating counsel upon receipt of its first summons and complaint. With one or two cases, there seems to be little to coordinate at the national level. Nevertheless, that is precisely the most advantageous and effective time to retain national coordinating counsel, whose job it should be to interview witnesses, gather documents and develop and implement an overall defense strategy. They should pull together all of this into a trial outline to be used by trial counsel in the various cases.
When the need to retain national coordinating counsel is not recognized early, information important to the defense of a company's litigation can become lost or difficult to obtain. Early in litigation, a company should gather and review the potential evidence that may affect the litigation. If no one counsel is responsible for overseeing the litigation, it is unlikely a systematic review of the clients' documents and interviews of potential witnesses will occur. With the passage of time, witnesses' memories may fade. They may be terminated from employment or retire and lose their incentive to provide information to the company.
Under such circumstances, the company risks having problematic documents and witnesses surface through opposing counsel, placing the company on the defense, rather than finding a way to integrate the problematic evidence into the defense strategy or, at a minimum, developing a way to calmly respond to it.
Obviously, the sooner the need for national coordinating counsel is recognized, the easier their job will be, as they will not have to undo inconsistencies or wrong turns taken when cases are directed by multiple firms. On occasion, national coordinating counsel may be selected early in the course of litigation, but if they are not well qualified or lack strategic insight, the choice can end up wasting the company's money and placing it at risk of further litigation, rather than providing the client with the litigation coordination and strategic guidance required. Not only is it important to acknowledge the need for a national coordinating counsel, but it is equally important to figure out who can meet the companies' needs as national coordinating counsel.
Several factors are important in determining the qualities needed in a national coordinating counsel. National coordinating counsel and their team of information technology (IT) professionals, associates and paralegals should be able to employ sophisticated databases and extranet sites to share information with the client and local counsel, and to monitor the status of hundreds or thousands of cases. While a spreadsheet may be sufficient to maintain a case list in some instances, a spreadsheet is not robust enough to allow national coordinating counsel to respond to most clients' needs and to handle large numbers of cases and documents expediently.
Because national coordinating counsel are often retained after at least some of the cases have been pending against a company for some time, it is helpful if the national coordinating counsel have litigation triage skills: They need to be able to quickly analyze the litigation as a whole, as well as its parts, analyze the company's risks and develop an effective litigation strategy. National coordinating counsel must be able to identify problems and inconsistencies in the defenses developed by varying law firms across dozens, if not hundreds, of cases, which typically are pending in multiple jurisdictions, both state and federal, and find a way to remedy the inconsistencies.
Evaluating litigation risks
When the number of cases involved is substantial, national coordinating counsel should be capable of evaluating the client's litigation risks by analyzing a statistically significant sampling of the cases pending in a variety of jurisdictions. From this due diligence analysis, effective national coordinating counsel should work with the client to develop a profile for the type of cases that should be targeted for trial and those that might be better off being settled early. National coordinating counsel should also be experienced in working with local counsel to determine the appropriate profile for each case by utilizing carefully crafted forms designed to evaluate key factors affecting the litigation.
In summary, once a company determines it is in its interest to retain national coordinating counsel, it should look for both a lead partner and a law firm who can provide the following:
- Top-notch competency in providing a legal representation. Serving as national coordinating counsel is not a task for a mediocre lawyer or team of lawyers.
- A firm experienced in addressing client discovery issues, large document productions and electronic document management.
- A firm experienced in addressing litigation hold procedures for clients, including print and e-mail documents. They should be skilled at analyzing documents to evaluate their impact on all cases and develop a strategy for addressing the documents through witnesses' testimony, if the documents are subject to production.
- A firm that is technologically savvy and experienced in developing and using databases and extranet sites to handle large amounts of information and documents. The firm must be able to analyze cases and share the information and documents with the clients and local counsel.
- A team of lawyers who will work collaboratively and cooperatively with the client to develop the corporate story, keep it consistent and prepare corporate witnesses to present effectively the corporate position.
- A firm that can work cooperatively, effectively and efficiently with local counsel to ensure consistency throughout the cases, while minimizing duplication of efforts.
- A firm with deep experience in identifying and developing experts in complex fields related to the company's litigation.
- A firm that will work with the company to promote cost efficiency and share its developed knowledge with local counsel.
- A team who can provide the client with consistency and accuracy in reporting.
- A team of lawyers who can and will provide risk assessment across cases, and who will develop and implement an early assessment of the litigation, budgets for handling the litigation and a strategy for handling the litigation.
- A firm that can work collaboratively with in-house counsel to determine when and under what conditions cases should be tried rather than settled.
- A firm that collaborates with the client to develop an end-game goal to the litigation.
Sharon L. Caffrey, a partner at Philadelphia-based Duane Morris, concentrates her practice in the areas of mass tort, products liability and toxic tort litigation. She serves as the national coordinating counsel for Pliva Inc. in In re Phenylpropanolamine (PPA) Products Liability Litigation, MDL No. 1407 (W.D. Wash.). She is also one of a handful of national trial counsel for Ford Motor Co. and General Motors Corp. in their asbestos litigation and is regularly assigned to handle their asbestos trials around the country.
Reprinted with permission from The National Law Journal, © ALM Media Properties LLC. All rights reserved.