It is no secret that plaintiffs and their attorneys typically want to settle cases quickly. It’s also no secret that much of every dollar spent by product liability defendants goes toward litigation costs, not compensation to injured plaintiffs. Some cases stretch out for years in pursuit of “reasonableness". When that happens, litigation costs soar on both sides. Sometimes litigation is the only remaining option but it is in the interests of both sides to pursue and exhaust all other reasonable options first.
More and more product manufacturers these days are encouraging defense counsel to get involved early, even before suit is filed, to discuss and resolve cases before attorney’s fees and the rest of the case get out of hand. This is not a matter of defendants throwing money at plaintiffs, a strategy which ultimately backfires anyway. This is about communicating with plaintiffs’ counsel and amicably resolving the dispute. Education is the key.
The phrase is familiar to all of us: You can lead a horse to water, but you can’t make it drink. This can be frustrating at times, leading counsel to attempt to grab the horse’s head and dunk it in the water. The better approach is to establish rapport and mutual respect with the horse, walk with it to a small water hole, and describe to it how beneficial to all drinking now would be as opposed to gambling on another, larger source of water later down the trail.
The benefits to both sides are obvious, which explains why so many cases approached in this manner settle - it is fair to both sides. Plaintiffs and their attorneys are spared litigating a case for years only to discover that the defendant has a great defense. Defendants are spared the cost and effort of propounding and responding to tomes of discovery and conducting depositions in a case where all the discovery in the world won’t diminish known significant exposure and substantial damages. Time spent early on learning the facts from both perspectives, and sharing that information with the adversary, leads both sides to making informed choices as to whether the case is worth pursuing into litigation.
Experienced counsel is the key. Defense counsel needs to be intimately familiar with the defendant’s operations or product so that he recognizes the problem areas and defenses available. Some clients utilize one firm or attorney as national settlement counsel to obtain that benefit on a consistent basis and to educate local counsel as needed. Experienced defense counsel knowledgeable with the product and client can then educate plaintiff’s attorney as well as learn about the case from the plaintiff’s perspective.
If the plaintiff’s case is a bad one and the attorney would resent pursuing it after three years of litigation, that attorney is more likely to convince his client to drop it or resolve it now. Conversely, if the initial investigation coupled with the defense attorney’s knowledge of the industry, the product and the defenses available points to high exposure, it is more beneficial to resolve the case before the plaintiff’s attorney gets fixated upon a big figure after getting a favorable expert report and devoting hundreds of hours.
For those cases that can’t be resolved early, litigation results. Reasonableness can always be pursued via the longer route. Even in such an instance, you are ahead of where you started. You have educated yourself, your client and your adversary, established a rapport that will make senseless motion practice less likely, gained an understanding about the real issues in the case far beyond the pleadings which should help to focus and limit discovery and hopefully have brought all involved to a more realistic view of whatever differences separate them. These benefits will yield results over time and the course of any given case.
Advantages of Using National Settlement Counsel
- National litigation counsel has the advantage of knowledge that comes with specialization, something that is lost when separate counsel in each state handles just one or two similar type claims. The national counsel can more readily identify trends or propose solutions to avoid future problems.
- Sometimes all claimants want very early on is payment of medical bills and a little compassion or an apology. Early attention to claims can avoid suits that could become costly once claimants feel ignored.
- Even if the defendant manufacturer pays out money, the benefits realized by pre-suit settlement include avoiding publicity and public relations problems, or having to divulge documents during litigation.
- A successful program can reduce insurance premiums for businesses.
- It doesn’t take much planning to start, as the “program" is really an attitude toward resolution of disputes, implemented on a case by case basis