Five Steps to Effective Mass Tort Defense

In building a strong mass tort defense, litigators face a number of challenges. As Faegre Baker Daniels partner Amy Fiterman and associate Joe Winebrenner wrote in an article published in Minnesota Lawyer, the defense often encounters “bet-the-company” stakes and “opposition [that] can be more sophisticated and organized than that in ordinary one-off litigation.” To provide the best defense under these conditions, Fiterman and Winebrenner offered five pieces of practical advice for managing a mass tort from start to finish.

“The first step to getting control of strategy and organization is to create a collaborative leadership team between in-house and outside counsel,” the article said. “Additionally, it is critical to quickly identify national counsel—the law firm, or lawyer, that will serve as the chief outside counsel and strategist in the defense of the litigation.”

It’s also critical at the outset to “issue a comprehensive litigation hold…that adequately accounts for the scope of discovery that [the defense] anticipates will be relevant,” so that plaintiff’s counsel cannot allege the defendant failed to act in good faith.

Fiterman and Winebrenner also advised the defense to “strategize offensively” in managing the discovery process. “Litigation counsel should research the applicable law early to identify winning legal theories, and facts that need to be proven or disproven to support those theories,” then use that knowledge to “narrow the plaintiffs’ case inventory.”

Finally, the defense should develop a resolution strategy that informs their actions throughout the process.

“The company, together with national counsel, should perform a preliminary investigation into the merits of the case, identify strategic litigation-wide goals and define ‘success’ in terms of an end result.”

The complete article is available to subscribers.

This article was also placed in North Carolina Lawyers Weekly and South Carolina Lawyers Weekly in November 2015.