10 Tips for Winning Mass Tort Litigation
Mangan, Luke J., Risk Management
Companies can quickly become overwhelmed by mass tort litigation and plaintiffs' attorneys demands. The following tips will help you navigate the perilous waters.
1. Retain Coordinating
Depending on the scope of your mass tort litigation, you may need to hire a firm to act as your national coordinating counsel and work with all of the local counsel hired in the jurisdictions where litigation is pending. They will not only supervise local counsel but ensure that your response is consistent nationwide.
2. Hire Good Local Counsel
Your local counsel will be your soldiers in the trenches. They should be experienced and respected by the plaintiff's counsel. Depending on your strategy, your local counsel may also act as your trial team. You will need multiple trial teams and they will have to handle multiple cases at the same time, a tactic often employed by plaintiff's counsel to pressure your company into mass settlements.
3. Coordinate Discovery Responses
If you are facing lawsuits in jurisdictions throughout the country, your company may be served with discovery from numerous plaintiffs' counsel who will likely share information. It is imperative that your local counsels answer discovery in a consistent manner. A good plaintiff's attorney will use inconsistent answers to argue that your company failed to answer in good faith and will seek sanctions for perceived misconduct. Your national coordinating counsel should review all proposed responses to pending discovery to ensure that your company is telling the same story, no matter the jurisdiction.
4. Set Up E-Rooms
An e-room is a computer database kept by your local counsel that includes copies of all pleadings, discovery, correspondence, court orders and other critical documents. Documents are scanned, uploaded and organized into various folders to provide remote access for nonattorneys so that the company can monitor the progress of every case. Your counsel must have trained personnel in place, however. E-rooms are only as effective as the people entering the data.
5. Identify "Problem" Jurisdictions
Plaintiffs' attorneys filing mass tort litigation typically seek out and file their suits in jurisdictions advantageous to them. It may be that typical jurors in that jurisdiction are more blue-collar and have extremely anti-corporate views. In other jurisdictions, judges may be elected and may also exhibit certain pro-plaintiff tendencies. Speak with both national and local counsel to identify these "problem jurisdictions" and adjust your settlement or trial strategies accordingly.
6. Evaluate Punitive Damages Early
In most states, punitive damages are available where the alleged conduct exhibits a "willful and wanton" or "flagrant" disregard for the rights of the injured. …