Outside Counsel And Toxic Tort Litigation: Measuring Success And Adding Value

Saturday, December 1, 2007 - 01:00

Serving as the relationship manager and handling toxic tort litigation for one of my law firm's significant clients for over a decade, I am occasionally asked by my colleagues to provide a list of our "successes" for marketing purposes. Despite the fact that we have a lengthy record of achieving positive results, including winning trials and obtaining dismissals, the metrics of success are not limited to trials and summary judgment.

First, before you can measure success, you have to define it. Litigators ostensibly have easily quantifiable measurements of success, such as winning a trial or dispositive motion. But success is not always so readily measured. Indeed, taking a case to trial and ultimately obtaining a favorable verdict may not necessarily be viewed as a success from the standpoint of a client. When a case has a seven-year life cycle requiring hundreds of thousands of dollars to defend and diverts human and other valuable resources from the client's business, the client may not view a winning verdict as a success, particularly when an earlier resolution could have saved the client's business unit time and money.

We have found that Early Case Assessment is one of the best tools to define success. Early Case Assessment is a collaborative, cost-benefit analysis that applies the same decision-making process to litigation that clients apply to other business challenges. Perhaps the most valuable aspect of the Early Case Assessment process is that it identifies the client's dispute resolution philosophy and long-term objectives. In essence, it helps us understand early in the case how the client defines success in the matter. Knowing that the client wants to keep a low profile in a multi-defendant case, or avoid trial due to simultaneous trials in other jurisdictions, or that an imminent sale of a client's subsidiary dictates the swift resolution of a particular docket of cases, helps outside counsel achieve success.

Second, in the context of a longstanding client relationship, the full measure of the value outside counsel can impart is both incremental and exponential. Continuity of the outside counsel handling matters throughout the client relationship enables firms to leverage knowledge of the company and its business units, documents, and employees relevant to legal matters, for the benefit of the company. Indeed, for certain case families (some of which have reached the one-and two-decade mark), the continuity of the attorneys at our firm is greater than the continuity of in-house counsel managing those matters (due to the natural rotation of in-house counsel among business units), and that continuity has enhanced the consistency, effectiveness, efficiency, and results achieved.

Toxic tort litigation typically involves a number of similar or identical cases being filed over a period of years (and sometimes decades). Over the course of a longstanding representation of a client, we observe the evolution of issues first hand: recognizing the predicates to overcoming a court's unwillingness to favorably consider an issue, identifying when plaintiffs' counsel changes their view of the client from nominal defendant to target defendant, and identifying subtle but significant changes in plaintiffs' theories (and being able to controvert those new theories with statements made by plaintiffs' counsel in previous cases). The ability to identify and address shifts in toxic tort litigation as we analyze defense strategies is one of the many ways outside counsel can add value.

Likewise, when we have a long history of defending a client, we can quickly assess plaintiff's discovery requests, summarizing our relevant knowledge and making prompt recommendations. For the in-house attorney who is new to a docket and deciding how to deploy company resources, it is helpful when outside counsel can send an e-mail saying, "We just received from plaintiff's counsel the attached request for five categories of documents. We produced the first three categories of documents last year in the Stevens case. The other two categories have also previously been requested; we confirmed in the Johnson case that those categories of documents were destroyed pursuant to the company's document retention policy, and Ann Miller is the company witness who can attest to that."

Wins and losses are ways to measure the success of outside litigation counsel, but the greatest value outside counsel can offer will often transcend the verdict sheet.

Lisa L. Smith is a Partner at Phillips Lytle LLP and concentrates her practice in the areas of litigating toxic tort, product liability and premises liability cases.She can be reached directly at (716) 847-8336.

Please email the author at lsmith@phillipslytle.com with questions about this article.