November 01, 2018

The Role of the Virtual Law Team in Defending Litigation of All Sizes

The concept of the “virtual law team”1—a collaborative, and often technology-based, team of lawyers selected for specific tasks in defending a single client’s litigation—is not new. One of the first and most successful virtual law teams was created in the early 1990s in response to the silicone gel breast implant litigation. “With over 400,000 claimants, defendants had to combine forces and collaborate in the most efficient ways possible,” says Joe Price of Faegre Baker Daniels, who served as national coordinating counsel for one of the defendants. “The virtual law team has been a model for defending mass torts ever since.”

The advantages of the virtual law team are well demonstrated in the context of mass tort litigation. Since the silicone gel breast implant litigation, FaegreBD’s product liability group has used the model in numerous multidistrict litigations. However, with advances in technology and ever-increasing specialization of the legal practice, the virtual law team of today has a role in defending multi-plaintiff litigation of all sizes. “Many forward-thinking companies are setting up virtual law teams before a single case is filed” notes Price. The virtual law team model can be adapted to address multi-plaintiff litigation of all sizes, and it offers advantages to clients and lawyers alike.

The Structure

The virtual law team does not have one set structure. Indeed, many of the advantages of the model are in its ability to expand and collapse to meet a company’s litigation needs at the time. For example, a company anticipating nationwide litigation involving the same or similar products can set up a single virtual law team organized on the national level, while a company with a history of litigation in specific states or involving distinct products can set up a series of virtual law teams organized on the regional level or by product. Moreover, depending on the size and sophistication of the litigation, a company can select attorneys from one law firm or multiple law firms. Similarly, the attorneys or law teams can be assigned one task or multiple tasks.

Nonetheless, there are common characteristics of virtual law teams that can help guide the structuring. At FaegreBD, virtual law teams are often organized around specific tasks for the purpose of leveraging the expertise of the chosen attorneys or law firms. The core tasks include coordinating counsel, trial team, discovery team, company case team, science and experts team, law team, and settlement team.

Mass Torts Infographic

  • Coordinating. Coordinating counsel manages the global litigation strategy and provides subject matter expertise, consistency and efficiency to the defense of complex matters. They further serve as the primary point of contact for the client, streamlining communication and reducing the burden on in-house counsel.
  • Trial. The trial team is a selection of experienced courtroom trial lawyers who are skilled advocates and know the jurisdiction and the science, medicine and company case. Often in nationwide mass torts, local counsel is added as a member of the trial team to offer expertise on local practice and procedure.
  • Company Case. Working closely with coordinating counsel and the trial team is the company case team. The company case team learns the business and its employees and develops the offensive and defensive themes to present the “company story.”
  • Discovery. The discovery team knows the best practices of e-discovery, from preservation to protocols to production, and has the proper processes in place to minimize the cost of discovery, which can be the most expensive stage of any case.
  • Science and Experts. Members of the science and experts team work directly with internal company experts and external consulting and testifying experts in a variety of disciplines. This team develops both defensive expert themes and strategies to attack plaintiffs’ scientific theories and expert opinions. The science and expert team draws on its deep knowledge of the scientific issues in the cases to prepare witnesses, evidence and cross-examinations for trial.
  • Law. As the size and sophistication of the litigation grows, so too does the need for a separate law team to handle complex legal issues, including, for example, dispositive motions and motions challenging admissibility of evidence. The law team works before and during trial to anticipate legal issues, to address such issues as they arise, and to free the trial attorneys to focus on winning the trial.
  • Settlement. Last but not least, a settlement team should be part of any virtual law team from start to finish. The settlement team helps develop litigation strategy and negotiates individual and global settlements. In mass tort litigation in particular, settlements are complex, requiring creative solutions and the proper processes in place to administer hundreds, if not thousands, of settlements.

Counsel selected for the virtual law team must have the necessary technology in place to operate the virtual law team. Today this includes everything from internet workplaces, such as extranets and client sites, to document sharing applications, video conferencing capabilities, and electronic billing systems. Moreover, ideal counsel shares the company’s culture and commitment to fostering collaboration. After all, the goal of the virtual law team is collaboration to provide more efficient and effective representation.

Litigation is unpredictable, but with a virtual law team, a company is prepared for litigation of all types and sizes.

The Advantages

The virtual law team provides strategic and cost saving advantages in multi-plaintiff litigation of all sizes. First, the model allows a company to hand select attorneys from one or more law firms based on the attorneys’ strengths and the client’s preferences. Clients often say, “We want to hire attorneys, not law firms.” The result is a more effective and enjoyable attorney-client relationship. Second, the model encourages diversity. Diversity of all kinds, from cultural backgrounds to professional expertise, is proven to result in better outcomes. Third, the virtual law team empowers clients with more choice and control over pricing. For example, a company can choose attorneys for trial work without paying the same billable rates for discovery work. Similarly, a company can choose attorneys for the company case work based on location to minimize travel cost and burden on its employees.

Fourth, the virtual law team leverages technology for improved communication and coordination between attorneys and across litigation. The model allows attorneys to share their expertise and experiences from anywhere in the world, at the click of a button. The efficiencies of the virtual law team cannot be overstated. Fifth, attorneys selected for their expertise can concentrate on their strengths and learning the company’s litigation, further creating efficiencies.

Finally, as already discussed, the virtual law team can expand and collapse to meet a company’s litigation needs over time with minimal startup cost. Litigation is unpredictable, but with a virtual law team, a company is prepared for litigation of all types and sizes.

Conclusion

The virtual law team was created as a necessary response to mass tort litigation. However, with advances in technology and ever-increasing specialization of the legal practice, the model should be considered in multi-plaintiff litigation of any size. With the proper resources in place, the model is flexible, encourages collaboration, and provides more efficient and effective representation. In a forthcoming series of articles, each area of the virtual law team introduced above will be discussed in detail. For more information about virtual law teams, or how FaegreBD approaches the defense of mass tort litigation, please visit FaegreBD.com/mass-torts.

FOOTnotes

  1. It has become trendy in some circles to refer to a virtual law team arrangement as a “virtual law firm.” We shy away from use of “firm” in this context for a few reasons. First, “firm” is a term of art under the Rules of Professional Responsibility in most U.S. jurisdictions, and a virtual law team is not intended to be a “firm” as defined by those Rules. Second, the term “virtual law firm” is frequently used to describe an actual law firm that does not have a physical office. A virtual law team is not a “firm” in this sense, either.
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