We must indeed all hang together, or, most assuredly, we shall all hang separately.
--Benjamin Franklin, at the signing of the Declaration of Independence
IT IS NOT unusual today for counsel to be involved in cases with multiple defendants or in multiple cases involving the same defendant. In those types of cases it is often advantageous to work with counsel for the other defendants to prepare and present a joint defense to the pending claims. The best way to do so is to form a joint defense group. This article discusses the advantages associated with forming a joint defense group and the topics to be addressed in a joint defense agreement, identifies possible risks associated with creating a joint defense group, and discusses issues regarding preservation of the joint defense privilege.
I. Why Form a Joint Defense Group?
There are several advantages to forming a joint defense group. Joint defense groups enable each defendant to substantially reduce the costs associated with its defense. These cost savings come in two forms. One is sharing the work: dividing legal research, splitting up the depositions, retaining expert witnesses, contributing paralegals for intensive document reviews. (1) Joint defense groups can also provide huge savings in expensive out of pocket costs. These include the costs of experts, consultants and court reporters. One of the largest costs incurred in "big document" cases is the cost associated with the creation of a computerized database to handle all the documents. Belonging to a joint defense group allows all defendants to share the sometimes enormous costs associated with creating and utilizing such databases. (2)
Saving money is not the only benefit to be gained from belonging to a joint defense group. There is also the benefit derived from combining the expertise, knowledge and skills of the attorneys in the group. Some of the lawyers may have specialized knowledge about the substantive law at issue. Others may have experience dealing with the particular industry or business involved. Taken collectively, the joint defense group has deeper knowledge and more expertise than any single defendant's lawyer. (3)
A third benefit of joint defense groups is the ability to coordinate strategy and tactics. Joint defense groups permit each attorney to fill knowledge gaps in the defense case and minimize the waste of judicial time that results from the presentation of uncoordinated defenses. A joint defense group enables the defendants to speak with one voice, thereby staying on message and avoiding (or reducing) conflict on their side of the case. A joint defense group can also help to ensure that one member's strategy doesn't work at cross-purposes with another's. (4)
There are also drawbacks to participating in a joint defense group--conflicts that are inherent in the very nature of a joint defense effort. Major defendants in the case want to control the defense, in order to protect their large stake in the case. As a result, major defendants often do most of the group's work. Because they have more to lose, major defendants typically invest considerable time and effort in carefully establishing each possible defense and every basis for each defense. This can be extremely expensive, but for a major defendant the cost of a first class defense often pales in comparison to the potential liability it faces. (5)
Minor defendants have a lesser stake in the litigation. Given their smaller risk of exposure, minor defendants sometimes balk at incurring the costs associated with the gold standard defense the major defendants insist upon. This conflict can easily create dissension within the group and threaten the major defendants' control of the group. (6)
Major and minor defendants also frequently disagree on strategy issues. A minor defendant may want to file an early summary judgment motion which has the potential of eliminating a minor defendant from the case before it gets too expensive, while major defendants may be more interested in having the issue decided later in the case, after discovery has been completed and the record is fully developed. …