Companies in a variety of sectors may face repetitive litigation, which involves a number of cases, in multiple jurisdictions, arising out of a common factual core or common liability theories. These cases often feature common corporate documents, issues, and witnesses. Matters that are the subject of repetitive litigation may include product defect cases, general or premises liability matters, claims alleging negligent provision of services, claims for consumer fraud or violation of consumer protection statutes, or claims asserting other common law or statutory-based challenges to a company’s business practices. This type of litigation differs from mass tort actions involving a single product or catastrophic occurrence in that the nature of the alleged product defect, manner of injury, or other factual circumstances giving rise to repetitive claims typically are case-specific and the cases are not aggregated.
While the damages in each individual case may be less than the potential damages associated with mass tort claims, the decentralized nature of repetitive litigation presents inherent challenges and risks that can be costly. Plaintiff’s counsel will frequently bolster unfounded claims and increase the value of low-damage claims by exploiting inconsistencies in a company’s discovery responses, positions, or testimony in other similar cases, and may publicize decisions adverse to the company. The proliferation of communication technology, the use of social media, and the increased communication and collaboration within the 21st century plaintiff’s bar have magnified these risks.
The following tips may assist in-house counsel in more effectively managing their company’s repetitive litigation portfolio to reduce overall liability exposure, control costs, and free up time to focus on their internal client’s business goals and priorities.
1. Be alert and investigate patterns
In-house counsel should be attentive to potential repetitive litigation threats and be proactive in identifying and responding to the risk. Indicators that individual cases may be part of a larger pattern include: formulaic complaints; recurring plaintiffs’ counsel or opposing experts; an increase in warranty claims, customer complaints or lawsuits attacking the safety or integrity of a particular product or business practice; case reports and articles in medical or technical literature and/or media reports raising concerns about a product, business practice, or industry; lawsuits or publicity of adverse events involving a direct competitor. Once a suspected pattern has been identified, in-house counsel should promptly investigate and take steps to reduce (or eliminate) the repetitive litigation threat through remedial measures that may involve minimal cost but, in the long-term, save the company significant defense and indemnity dollars.
2. Develop a global defense strategy
A clear and consistent defense strategy is the foundation of successful management of repetitive litigation. Without a global approach, local counsel in different jurisdictions may pursue defenses, adopt positions, and prepare company witnesses to testify in support of theories designed to prevail in an individual case but may be inconsistent with, or contrary to, the company’s broader interests. To ensure consistency across multiple jurisdictions, it is important early in the process to identify and marshal the facts, documents and corporate witnesses knowledgeable about common issues. This information can be used to develop the strongest available defenses and an affirmative narrative supporting the company’s position. Implementing a streamlined procedure for handling discovery also is an integral part of the defense strategy to ensure consistency, avoid duplication and reduce the costs associated with continually “reinventing the wheel.”
3. Consider retaining outside coordinating counsel
The day-to-day, hands on case management, review of pleadings and discovery responses, and routine communications with local counsel necessary to achieve consistency can divert in-house counsel’s attention from other pressing business issues. Depending on the size and resources available to the company’s legal department and the volume and nature of the cases, it may be advantageous to retain outside counsel to help coordinate the company’s defense. Outside coordinating counsel can lead fact investigations, collect and consolidate relevant documents, manage discovery, prepare company witnesses, identify and manage experts, coordinate with local counsel, and serve as trial counsel in key cases. Outside coordinating counsel can also develop a deep knowledge of the company and its business that will allow them to assist in-house counsel in conducting risk assessments and make recommendations regarding settlement and trial strategies that are aligned with the company’s business goals and objectives. By actively participating in key trials, outside coordinating counsel can effectively present the company’s well-developed defenses and maintain the consistency necessary to avoid creating pitfalls for future cases.
4. Implement a clear and efficient communication process
The most carefully crafted defense strategy will not be successful unless it is clearly and effectively conveyed to all team members. Clear communication is also essential to avoid duplication of effort and keep in-house counsel timely informed of critical developments. An effective communication process should include regular reporting procedures and formats tailored to in-house counsel’s needs and internal business reporting requirements. Outside coordinating counsel can serve as an information conduit, collecting critical case information and presenting it in an easily accessible format. Additionally, technology should be leveraged to achieve efficiency through use of document management systems, secure extranets or other web-based applications for up-to-date reporting and fingertip access to case materials, a master calendar of case deadlines, and development of brief banks, deposition repositories, expert materials, and other general information that can be utilized across all cases.
5. Choose your battles strategically
In repetitive litigation, as in mass tort litigation, trial outcomes or settlements can have a ripple effect. Counsel should engage in rigorous case assessment and risk analysis, including early case assessments, to identify cases that should be tried or positioned for settlement and to allocate resources accordingly. Decisions about which, when and where to try cases should be made as part of the global defense strategy taking into account the company’s business objectives. Careful and strategic selection of cases for trial or settlement can position the company to increase the likelihood of a successful outcome with maximum impact across the board.