November 16, 2018

Settlement Counsel: The Key Driver to Resolving a Mass Tort More Efficiently

Team-based specialization in mass tort litigation serves a client’s strategic and financial interests. Through specialization, each lawyer on the mass tort defense team maximizes his or her contribution by drawing on their individual experience and strongest talents and carrying over their developed networks, skillsets and relationships from previous mass torts to the litigation at hand. One of the core tenants of the team-based approach is the use of settlement counsel to focus on strategic initiatives and end-game resolution efforts. In turn, this frees trial teams to focus on litigation, leaves diplomatic avenues open for discussion with opposing counsel separate from the heated battle lines of the litigation, and promotes efficiency through reliance on counsel with specialized skill sets needed to marshal the strategic and administrative aspects of favorable mass tort resolution.

What Is Settlement Counsel?

Settlement counsel is a team specifically tasked with developing and executing a long-term strategy to coordinate and potentially resolve a mass tort/multidistrict litigation (MDL) in accordance with a client’s strategic goals. Settlement counsel may be a distinct team from within the primary firm defending the mass tort (i.e., the client’s national products liability counsel), or it can be a separate team of attorneys from one firm that interfaces with the other firm(s) primarily responsible for litigation, discovery and other aspects of a client’s defense.

Settlement counsel focuses on the bigger picture. It works with the client to determine the strategy of the entire litigation without detracting from the everyday blocking and tackling necessary in the underlying cases (bellwether or otherwise). Settlement counsel will consider whether to prioritize settlement, which cases or clusters to settle, which cases to push, etc. For example, settlement counsel can coordinate with the discovery team on offensive discovery efforts, push for screening orders to cull meritless cases, or work with a law/briefing team to identify and brief dispositive issues in cases or clusters of cases. Should a client decide to settle, the settlement team then structures, negotiates and administers individual, inventory and global settlements.

Defendants should consider engaging settlement counsel at the beginning of a mass tort so that all options can be explored strategically and developed thoughtfully while the mass tort is in its infancy.

Because mass tort settlements are inherently complex, negotiating and administering hundreds of thousands of settlements requires creative solutions and intricate processes. Settlement counsel handles every aspect of the settlement process, from negotiating with unrepresented claimants to mediating single-plaintiff cases to negotiating global settlements. Although each mass tort differs, these efforts can prove essential to positioning the mass tort for effective and efficient resolution.

Why Is It a Good Idea to Have Separate Settlement Counsel?

  • Litigate bellwethers full throttle. Using separate settlement counsel allows litigation counsel to maintain laser focus on the more immediate tasks at hand that are instrumental to gaining the upper hand. For example, it permits trial counsel to press full steam ahead with the understanding that every issue will be contested and that the case will be tried. The trial team is thus insulated from the possible distractions and complexities of settlement – there is no temptation to not go over that key deposition one last time because settlement might be around the corner. And, if settlement is the best strategic option, settlement counsel can work in the background with the client, insurers and ultimately with opposing counsel to resolve the matter that is gearing up for trial. Trial counsel will not have to juggle both settlement efforts and putting on the best defense possible if the settlement falls apart at the last moment and the matter ultimately proceeds to trial.
  • Balance the SWAT team with the negotiator. By its nature mass tort litigation is intense and long-lasting. Discovery can seem endless as every Post-it note a company placed in a storage cabinet years ago is sought and fought over; esoteric legal issues with tangential relevance are bitterly contested for the slightest edge in a bellwether trial; and dozens of experts are retained by each side, when one or two would suffice in a one-off case. The litigators who are on the frontlines defending the client will have exceedingly adversarial experiences with opposing counsel. Some heated exchanges inevitably occur along the way. Under these circumstances, it is not the most prudent decision to ask these same litigators to turn the other cheek the next day and negotiate complex settlements with the same opposing counsel whom they have been litigating against for months or years. Settlement counsel can keep lines of communication open and maintain working relationships behind the scenes so that when settlement becomes an appropriate option, settlement counsel hits the ground running without needing to bury hatchets thrown during litigation.
  • Play to each team member’s strengths. Shaq dominated the paint, but you wouldn’t want him shooting free throws with the game on the line. Similarly, while many trial lawyers are brilliant advocates and astute tacticians, the skillset required to charm a jury is not the same one necessary to mastermind and administer the favorable resolution of a mass tort. For example, settlement counsel requires a sophisticated understanding of mass tort settlement strategies and models, mastery of technical aspects of large-scale settlement administration, effective communication with a client’s executives on end-game strategy and settlement approval, work with a client’s insurers and/or coverage counsel, etc. — skills even the most seasoned litigator may not possess. Thus, having a separate settlement team provides clients with dedicated specialists to focus on strategy and settlement, while trial lawyers and other litigators focus on doing what they do best.
  • Build a foundation of trust. Though the cases may be numerous, the world of mass tort litigation is small. The players know each other, and the familiarity permits working relationships to develop and the necessary level of trust to be fostered. Thus, retaining settlement counsel that has knowledge and familiarity with the players on the other side puts the client on a level playing field and cuts down on time it would otherwise take the parties to reach the level of trust and understanding necessary to have productive and realistic negotiations.

When Should You Retain Settlement Counsel?

Although it may seem counterintuitive, the right time to retain settlement counsel is at the beginning of a mass tort, even when the defendant may not have any present intention of settling. In our experience, using settlement counsel early is ultimately more efficient for clients in the long run because settlement counsel can coordinate strategic initiatives, build relationships with stakeholders, determine pressure points and interests of opposing counsel, etc., early on. Realistically, the mass tort will be resolved through some form of settlement and having settlement counsel lay the groundwork early mitigates the unwelcome scenario of starting that work from scratch if settlement becomes the primary goal at a later time. Resolving a mass tort — hundreds or even thousands of lawsuits brought by dozens of different firms with varying interests, strategies, skillsets and personalities — is a complex undertaking, and engaging settlement counsel early on permits counsel to tackle these issues proactively.

When settlement counsel comes on board early, it can execute strategic initiatives designed to develop windows in the litigation where broaching large-scale settlement may be appropriate and undertaken from a position of maximum leverage.

Conclusion

By their nature and size, mass torts and MDLs are inherently complex litigations, and resolving them successfully and efficiently requires strategic foresight. Appointing separate settlement counsel may help to resolve the mass tort more efficiently. By entrusting this work to a dedicated team, trial and other counsel are freed up from the potential distraction of settlement, and the client’s goals are met efficiently by maximizing specialized individual skillsets. Because these benefits enhance the defense and promote efficiency in the long run, defendants should consider engaging settlement counsel at the beginning of a mass tort so that all options can be explored strategically and developed thoughtfully while the mass tort is in its infancy. Indeed, settlement counsel can work with a client to try to prevent a mass tort from ever being initiated.

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