Businesses, large and small, can find themselves overwhelmed by litigation quickly, if and when they find themselves in the crosshairs of a developing litigation. For years, the best example of these crosshairs was those focused mainly on asbestos and those entities that either supplied or manufactured with asbestos. However, over recent years we have seen that focus shift to other types of litigation, including cosmetic and pharmaceutical talc, industrial talc, crystalline silica, benzene, PFAS, pharmaceuticals, and many others. With most of these developing litigations, there are plaintiff firms that specialize in investigating entities involved with the products or activities at issue, and then bringing an onslaught of suits against those entities. Once an alleged tie is found between any mass litigation and an entity, the entity can find themselves named in almost every suit filed across the nation by national plaintiff firms. This often happens before an entity can truly appreciate the magnitude of the impact of these lawsuits.
Many entities attempt to manage this litigation in-house, not knowing that they have options on how best to manage their entity’s litigation issues. However, many times a better alternative is to hire a National Coordinating Counsel (“NCC”) to assist in managing the litigation for the entity. The NCC’s job is to manage every aspect of an entity’s litigation across jurisdictions relating to a specific topic or topics. The use of an NCC allows for streamlined work, implementation of national litigation strategies, and better and more predictable litigation outcomes.
In particular, there are advantages to hiring an NCC at every level of litigation. Below we will outline the basics of why hiring an NCC can benefit your entity at different levels of litigation. We will be publishing a series of follow-up articles on each specific aspect of litigation mentioned below and how hiring an NCC can assist in bringing more value to your entity as compared to attempting to manage the litigation in-house.
- Case Management
The NCC’s main role is to manage your entity’s litigation across jurisdictions. This will include tracking all of the relevant deadlines in your cases, including trial dates, expert discovery deadlines, written discovery deadlines, depositions, and motion practice. The NCC tracks this information in real time by having open lines of communication with local counsel in each jurisdiction and creating reports based on that communication so that the information can be presented in a quick and easily digestible manner to your entity. However, this role goes well beyond just tracking relevant events in cases. The NCC is able to report trends involving different plaintiff firms, experts, product identification, and strategies for defenses. The NCC will use these trends and information from across jurisdictions to help develop and implement defense strategies.
For example, Personal Jurisdiction and Forum Non-Conveniens defenses can be suggested based on not only the facts of a case, but also the knowledge of different jurisdictions case specific laws regarding causation, available defenses, damages, as well as others. The NCC is also able to track litigation in each jurisdiction to determine which jurisdictions are more likely to go to trial, jurisdictions with higher settlement values, and jurisdictions that plaintiffs are likely to refile cases against your entity as the sole defendant after a successful Personal Jurisdiction or Forum Non-Conveniens motion. The NCC is able to communicate with local counsels to determine all the facts so your entity can be confronted with only issues and possible solutions rather than having to find those solutions yourselves. This case management also branches out too many other aspects of the case, including discovery, corporate representatives, experts, and trials, as mentioned below.
- Discovery
Perhaps one of the biggest roles an NCC can play to ease the burden of litigation on an entity is to manage written discovery. When responding to discovery across cases and across jurisdictions, a national strategy is required. This strategy will ensure that responses are uniform across cases and that your entity is not committing discovery fraud. An NCC can draft all discovery responses across jurisdictions to ensure that all objections and responses are phrased the same way nationwide. However, it is also possible to have local counsel draft your responses and to have the NCC review these responses to ensure similar objections and responses. Either way, the NCC ensures that each inquiry made to your entity is responded to in a uniform way. It avoids contradictions that, when discovered by plaintiff firms, can lead to motion practice and accusations of discovery fraud, which can lead to hefty and punitive penalties.
An NCC ensures that document productions are consistent nationwide to similar requests. When a plaintiff firm is filing cases against your entity in multiple jurisdictions, they are expecting to receive the same documents in response to their requests regardless of the jurisdiction. Without an NCC providing oversight, it is possible that documents can be omitted from disclosure or that documents can be accidentally produced. Either way, this can lead to discovery motions and/or sanctions for discovery fraud. Discovery fraud is a serious risk if your discovery responses and document productions are not managed at a national level, the consequences of which can plague your entity for the rest of its life in the litigation.
Furthermore, an NCC can assist in the drafting and use of confidentiality orders to protect your documents. This needs to be done on a national level, as disclosure in one jurisdiction would require disclosure in all jurisdictions. Tracking your documents and protecting your interests on a national level requires a national strategy that would need to be micromanaged by your entity’s legal department if your entity is not using an NCC.
Beyond written discovery, having an NCC can help ensure that a national strategy is undertaken for gathering discovery in cases. This includes the use of subpoenas for records, the use of private investigators, and the use of other resources. Additionally, having an NCC can assist in gathering discovery across states, as they can link local counsel across jurisdictions for more efficient use of interstate discovery subpoenas or Freedom of Information/Open Public Records Act requests. Overall, they implement a strategy across jurisdictions with the local counsels so that your entity can leave no stone unturned while not having to dedicate resources within your entity to do so.
- Corporate Representative Depositions and Trial Testimony
Corporate Representative depositions and trial testimony are another opportunity for an NCC to provide your entity value. First, if your entity is new to the litigation, an NCC can assist in determining the best person or persons to serve as a corporate representative. They can assist in the search by interviewing possible candidates and providing your entity with the pros and cons of each candidate. Once a corporate representative is established, the use of an NCC allows for consistent preparation of your corporate representative for all depositions and trial testimony to ensure that the testimony given on behalf of your entity is consistent. Part of this preparation is the development of a corporate story, for which your corporate representative will be the mouthpiece. This is of the upmost importance, as this will be how your entity is represented to a jury at trial. A compelling corporate story can be the difference between a large plaintiff verdict and a defense verdict.
The preparation of your entity’s corporate story, as well as your corporate representative, can include mock depositions, document reviews, and review of written discovery. This implementation of a consistent strategy across cases and jurisdictions avoids the issues presented when each local counsel is responsible for preparing a corporate representative. This also saves time and resources that would be required if each local counsel had to prepare for each corporate representative deposition by reviewing transcripts and discovery from other jurisdictions. An NCC can constantly be up-to-date without constant review of what has previously happened with a corporate representative. This makes your corporate representative testimony consistent for the witness, the client, and for plaintiff counsel. This leads to positive and predictable outcomes.
- Experts
An NCC team allows for efficient management of experts and expert discovery across cases and jurisdictions. An NCC team allows for each expert to have a specific point of contact. This creates a consistent relationship and avoids issues with ensuring the experts are provided with materials and payments consistently. It allows for consistent reports and more involved strategy development across cases. It also allows for a better relationship to develop, which often allows for experts to be more forgiving if issues to arise and reports are needed on an expedited basis. In-house management or management by local counsels of these issues may not result in as favorable outcomes.
Further, as a part of an overall expert strategy, having an NCC allows for a more tactical approach to retaining experts. This includes using multiple experts from the same field across different cases so that that your entity is not reliant on one expert in case there is conflicting trial dates, a conflict with a co-defendant, or an issue with retention in any particular case. Further, this allows for more in-depth management of costs. This also allows for experts to better manage their time while your entity’s entire case load is getting the full attention it deserves. This level of management is possible with an NCC because they are able to dedicate the time and their expertise in a way that local counsel and in-house attorneys cannot.
Further, an NCC team allows for consistent expert depositions, Daubert hearings, and trial testimony from your experts. This is similar to corporate representatives, discussed above. The consistent time spent in preparation for depositions and reviewing reports allows for a direct relationship on behalf of your entity with the expert, as well as a consistent strategy that builds and adapts over time. Further, this facilitates inclusion of cutting edge science and publications within your experts opinions, which substantially supplements your entity’s defenses. This is just another way an NCC team adds value to your entity.
- Trial Teams
While no entity wants to find itself at trial, the fact of the matter is that every entity named in a lawsuit must prepare as if a trial is inevitable. This ensures that the entity is prepared in the unlikely event that a matter goes to trial. An NCC team is your entity’s insurance policy that a trial team will be prepared under those circumstances. An NCC team helps create consistent work product for both pre-trial filings and trial itself. This stems from having developed a trial strategy that can be used as a basis for every case. Different elements of this strategy would include development of a corporate story, development of defenses such as expert defenses or state-of-the-art defenses, development of cross-examinations of plaintiff’s experts, and more. An NCC team will constantly be developing and perfecting motions in limine, openings and closings, and cross-examinations that will come together to form a trial handbook. This will allow trial counsel to have a step-by-step plan of how your entity should be defended at trial.
Moreover, this NCC work helps lead to a more consistent and predictable defense, which helps manage outcomes. The NCC team manages trial dates across jurisdictions so that an entity can ensure it is prepared for any trial issues that may come up in any of their cases. This also allows for the entity to have better forecasting of what cases will go to trial, which cases will resolve, and what issues may arise at any time. Due to this, an entity can be better prepared for outcomes and can prepare for what can be expected during any particular time period.
- Case Resolution
Resolving cases outside of trial is also the job of your NCC. An NCC can more effectively resolve cases than individual local counsel because they can do so on a larger scale. Further, an NCC can devote more resources and time to forming the relationships with plaintiff firms that allow for these resolutions. Your NCC team can create value when negotiating by creating group settlements across jurisdictions, but your NCC can also create value by producing creative solutions when negotiating with plaintiff firms. They can take advantage of early settlement opportunities or could develop different frameworks depending on your entity’s circumstances.
It is easier for your NCC team to develop creative deals as compared to local counsels or in-house counsel because they will be dedicating more time and resources to building a relationship with the different plaintiffs’ firms on behalf of your entity. Further, they will spend more time on behalf of your client developing relationships with co-defendants on behalf of your entity. This can help develop your defenses, which will impact the overall outcomes of your cases.
Your NCC team will also be tracking different points of data regarding the outcomes in your cases to allow for better projections for future matters. This includes the past history of cases with each plaintiff firm, past history of cases with each product, past history of cases with product use during different time periods, past history in each jurisdiction, as well as many other data points. All of this combines for more information so that your entity can be better prepared to handle the litigation it faces and can navigate a future given its involvement in the litigation.
Overall, an NCC team is the missing piece to your business’ litigation team. An NCC team manages your litigation, but more importantly, they add value to produce better and more predictable outcomes. For your organization to continue to succeed, it should be proactive regarding the possibility of mass litigation. This includes involving an NCC as soon as possible, as it allows your NCC to provide as much value as possible by preparing as much as they can before the cases start rolling in.