By Nicholas Meriage and Derek Ruzicka
In June of 2016, there were more than 370,000 active civil lawsuits pending in the federal district courts nationwide1. This number does not include any of the lawsuits filed in the state courts across the country, which far outnumber those in federal courts. Today, more than ever, companies are facing a greater risk of litigation. Companies who in the past had nominal litigation involvement are now finding they face multiple lawsuits in different jurisdictions around the country.
The increasing number of lawsuits poses a unique set of obstacles for companies. While in-house attorneys may be very competent dealing with the typical day-to-day legal and managerial issues a company faces, often litigation matters, especially multiple complex litigation matters, can require significant allocation of time that would be better spent on other duties. It is at this point that many companies employ outside counsel to manage the litigation. Because of the growing number of lawsuits, this often results in a company engaging multiple different local outside counsels around the country to handle different lawsuits.
The challenges faced in managing multiple outside attorneys can further become a sink on efficiency. The solution to this problem is to employ what is called “national coordinating counsel.” National coordinating counsel are tasked with providing a link between the company being sued and the local attorneys – the boots on the ground - who handle the day-to-day litigation issues arising in the individual cases. Often the decision to retain national coordinating counsel is only made when multiple lawsuits have already been initiated. However, to get the most benefit out of the national coordinating counsel, companies should begin exploring retention of counsel as soon as the first lawsuit is filed when the underlying issues can balloon into multiple related lawsuits affecting more than one plaintiff. Identifying this risk early results in significant cost savings over the span of these lawsuits because the national coordinating counsel can maintain a central file for the related issues, can coordinate consistent litigation case strategies, and will allow for efficient coordination with the company.
National coordinating counsel are often used in mass tort litigation and serial tort litigation, although the benefits of outside national coordinating counsel can be applies to other areas as well. The use of a national coordinating counsel streamlines the litigation process as the national coordinating counsel is familiar with and has specialized knowledge of the products, personnel, defendants and typical injuries involved in these cases. This knowledge is brought to bear in each of the cases and does not require each local counsel to recreate the central knowledge bank. The national coordinating counsel develops an understanding and knowledge of the company’s business that is paramount to creating a theme for the defense of these matters. The national coordinating counsel helps witnesses organize and understand the often complex facts of the cases and prepares the witness to provide credible and consistent testimony between matters.
Often, mass tort litigation involves claims arising out of asbestos exposure, pharmaceutical litigation, and environmental litigations. Serial tort litigation involves product liability claims arising out of the same types or similar product defects resulting in injury, death, or property loss. Examples of serial litigation include defective product claims involving power tools and automobiles sold in multiple jurisdictions. These cases incorporate common witnesses, experts, and evidence across multiple cases where a consistent, effective approach to the defense of the matter is imperative. This presents unique risks because inconsistent testimony and evidence between cases can create significant increases in the cost to defend the matter and in the cost to resolve a matter, as well as potentially undercutting the credibility of the defense strategies.
The use of national coordinating counsel is critical when evidence is going to be produced in multiple cases because national coordinating counsel develops a consistent streamlined process for searching, reviewing, and producing documents. The efficiency developed in preparing these productions should result in substantial cost savings in situations involving multiple lawsuits. Cases involving a similar mechanism of injury and common witnesses also benefit from national coordinating counsel.
If a company receives a summons in a lawsuit, not only should consideration be paid toward the potential issues in that case, but also to whether the lawsuit is the first of potentially many such lawsuits. It is important to consider what personnel and documents produced in the lawsuit could be relevant in other foreseeable lawsuits. If these issues will more than likely arise in related litigation or similar claims, the early retention of national coordinating counsel could help avoid potential pitfalls in the future.
1http://www.uscourts.gov/sites/default/files/data_tables/stfj_c1_630.2016.pdf
