In this age of corporate scandal, many attorneys are taking advantage of the current public suspicion towards big business by pursuing a wide scope and variety theories of liability against corporate defendants. At the slightest hint of a corporate scandal or product recall, a litany of lawsuits is sure to follow, many of which will be largely indistinguishable. Quite often, a seemingly minor dispute will serve as a "test run" for theories, which, if successful, may be pursued, in the form of a large-scale class action. In many cases, these "minor" disputes may be used to obtain evidence used to develop these theories (or similar theories) in subsequent actions.
As the number and scope of actions filed against corporate defendants continues to grow exponentially, so does the interest of corporations in streamlining their relationships with outside counsel. Many corporations have taken steps to reduce their outside counsel to a select group of firms proven to have expertise and skill in the defense of complex legal matters. In doing so, corporations have sought the benefits of cost reduction and the advantage of outside counsel's experience in a certain field. Such a concern has become heightened in an era of numerous "boilerplate" lawsuits involving similar facts or theories. Spreading these cases among numerous outside counsel may result in a variety of distinct and potentially irreconcilable approaches to defending an action. As many attorneys have joined forces to share strategies, pleadings and discovery from lawsuits throughout the country, one misstep in a single jurisdiction may easily have national implications.
An effective way to ensure consistency, efficiency and expertise in the defense of litigation is through the appointment of national coordinating counsel: an individual or small group of attorneys that have been designated to take an active role in the defense of all actions filed against a client that pertain to a certain set of facts or area of law. This article discusses the role of national coordinating counsel in the representation of corporate defendants and analyzes the significant benefits that corporations may derive from such a relationship.
The Role Of National Coordinating Counsel
As is evident from the job title, a fundamental purpose of the national coordinating counsel is to coordinate the defense of cases sharing similar facts and/or legal theories. Most commonly, the national coordinating counsel will serve as the primary litigator for each case filed against a client regarding a certain subject matter. Assisted by a team of experienced and knowledgeable associates and paralegals, the national coordinating counsel will supervise the factual investigation, manage discovery, prepare corporate witnesses for deposition and trial, retain and supervise the work of experts, draft pleadings and prepare the case for trial.
In cases where the national coordinating counsel takes a leading role, the role of local defense counsel is often limited to the filing of documents, the entry of routine court appearances, and guidance as to the practices and procedures of the jurisdiction. While the national coordinating counsel frequently also serves as the lead trial counsel, these responsibilities may be shared with or assumed by local counsel to take advantage of local counsel's knowledge of the court.
If corporations are faced with a number of relatively insignificant cases in a particular subject matter, a lesser role for the national coordinating counsel may be appropriate. For such cases, the national coordinating counsel may simply monitor the cases to ensure that uniform defense strategies are being utilized. In these situations, the most significant role of national coordinating counsel may be to review pleadings and discovery responses to ensure that nothing is being said or produced that could come back to haunt the client in a later case, including inconsistent assertions in pleadings or discovery responses that can prove fatal to a client's credibility. National coordinating counsel may also serve as the "eyes and ears" of the client in such situations by frequently updating the client as to the status of the cases. In doing so, national coordinating counsel may take the opportunity to call the client's attention to theories that may form the basis of more significant lawsuits.
National coordinating counsel is frequently called upon to become involved at the outset of an incident that will inevitably result in litigation. At this stage, national coordinating counsel will supervise the factual investigation and often seek to resolve claims before a lawsuit is filed. By taking advantage of a national coordinating counsel's expertise before a claim is filed, corporate clients may ensure that many cases will never reach the litigation stage. Even if a claim does result in litigation, the early involvement of national coordinating counsel will help ensure that the attorneys will have the knowledge to wage an aggressive defense.
While national coordinating counsel is most often utilized in the defense of pending or threatened litigation, they may also be useful in a consulting capacity. For example, national coordinating counsel may advise clients regarding business activities within the counsel's field of expertise. If the relevant field of litigation is one where the applicable law is rapidly evolving, national coordinating counsel may be called upon to advise the client as to legal developments that could have a significant impact upon corporate activities and/or the client's exposure to litigation.
Benefits Of NationalCoordinating Counsel
The most obvious benefit of the retention of a national coordinating counsel is ensuring consistency in litigation. Either through monitoring the work of local counsel or by taking a more active role, the work of national coordinating counsel will eliminate the problem of inconsistent defense strategies or discovery responses.
Even more importantly, the presence of national coordinating counsel will ensure that the defenses are not simply consistent, but the best possible. If chosen carefully, national coordinating counsel will have a detailed knowledge and expertise in the particular field for which he has been retained. This knowledge will grow and develop as national coordinating counsel defends numerous cases on behalf of the client. Over time, national coordinating counsel will develop a keen sense of the best defenses (both legally and factually) in a particular type of case.
National coordinating counsel will also apply his expertise regarding discovery. National coordinating counsel may utilize his experience in defending cases involving similar factual issues to perform a targeted investigation regarding the relevant facts of each matter, draft discovery requests that have proven to be effective in similar cases, and ask the right questions at a deposition. Furthermore, national coordinating counsel will often develop relationships with effective expert witnesses whose testimony has proven successful in prior actions. These relationships will enable national coordinating counsel to not only choose the best expert witnesses, but to prepare these experts in an effective manner.
National coordinating counsel will also know how best to prevent damaging discovery, utilizing his experience to raise appropriate objections and preserve the confidentiality of discovery materials. Furthermore, national coordinating counsel will utilize his familiarity with his corporate client to effectively prepare corporate representatives and other employees for depositions.
National coordinating counsel's experience in litigating these cases will result in a defense that is not only of excellent quality, but also of a relatively low cost. Over time, national coordinating counsel will develop a repository of effective legal arguments and discovery requests that are readily applicable to future matters. By minimizing the need for attorneys to "reinvent the wheel," hourly rates will be substantially reduced. Many national coordinating counsels also develop a repository of documents produced in response to earlier discovery requests. Such a repository, often stored in an easily searchable electronic database, will frequently enable counsel to retrieve many responsive documents at minimal billable hours, and without the need for the significant disruption to corporate operations often inherent in the preparation of discovery. In addition to these opportunities for cost savings, many corporate clients negotiate specialized billing arrangements with national coordinating counsel, in which counsel agrees to reduce its hourly rate or perform work on a flat fee basis.
The appointment of a national coordinating counsel will have other important practical implications for corporate clients. As noted above, national coordinating counsel will often serve as the repository for information regarding cases within the field of expertise, even if the national coordinating counsel does not play an active role in the case. This will allow the client to receive regular updates regarding these cases through a single source. Furthermore, the national coordinating counsel's depth and breadth of knowledge regarding both its field of expertise and the client's specific needs can enable it to provide valuable consulting services to their clients that may be beyond the abilities of local counsel.
By engaging national coordinating counsel to handle or monitor all cases involving certain types of factual contentions and/or legal arguments, corporations can place themselves on a level playing field with attorneys that are undoubtedly sharing information, strategies and discovery from cases throughout the country with each other. At the same time, corporate clients can ensure that an expert in the field is handling all of their cases in a particular subject matter in an efficient and cost-effective manner.
In an era in which productivity has become a paramount consideration in American business, corporations should expect nothing less of their attorneys than they demand of themselves. By ensuring that cases will be litigated in a coordinated and centralized manner, the appointment of a national coordinating counsel will result in enhanced productivity at a lower cost. Hiring more lawyers - believe it or not - can result in a bottom line savings.
Michael R. Nelson is a founding Partner and Chairman at Nelson Levine de Luca & Horst, LLC. The firm focuses on the business of insurance and specializes in the defense of class action and other types of complex litigation. Please visit www.nldhlaw.com.