Effective Litigation Management: From Kickoff to the Red Zone
By Steven N. Joseph
(Please note that the views expressed in this article are written as my own views to provide guidance for defense counsel, and do not, in any way, reflect those views of Western World Insurance Company, Validus Specialty, or AIG.)
Football season has now come upon us. One of the common statistics we now look closely at is how well teams when they get inside the “red zone” which is within 20 yards of the end zone.
And, as we see the season progress, the teams on top who make the playoffs on regular basis will do quite well when they get inside the red zone. Once the team gets well within field goal range, the expectation is that they will score at least a field goal, if not a touchdown.
The teams that have the losing records will not have such a good record. They may get inside the red zone 4-5 times in a game, and each time, they come away empty handed. The bad teams get hit with penalties, sacks, fumbles and interceptions. They break their fans’ hearts when it looks like they are about to score, and the other team gets a turnover and score on the other side of the field.
From a litigation management perspective, we are always asking the question, how a case can get resolved. But many people, both attorneys and those they answer to, fail to recognize where they are on the field, or do not look strategically on how to get into the “red zone”, identify exactly what the “red zone” is, and once they get there, recognize the opportunity to resolve the case for a client.
Whether a claim is pre-suit, or an actual lawsuit is filed, that essentially is the initial kickoff in the beginning of the case. If we have a lawsuit filed, and the only action taken is a perfunctory answer filed with the Court, which is a general denial of the claims asserted, essentially, all that we have is a fair catch. The ball is not really moved downfield in any substantive way.
A way to get the ball moving to midfield is to first look at the case from both a micro and macro perspective. The micro perspective takes a look solely at the facts and witnesses of the case. We eyeball the client, and take a look at any relevant documentation that they have.
The macro approach is more of a holistic look. How do the facts compare to the client’s general practice, or what they have done in the past, if it is a professional liability case. What is the law that pertains to the facts of the case. How this case compare to similar cases handled by the attorney’s office? What can we expect from opposing counsel based on any prior experience?
Once we have looked at the case from both a micro and macro perspective we literally begin from mid-field, regardless of the kind of case we have. We can then decide what the approach will be to get inside the red zone.
The initial evaluation then should dictate what plays will be run on the field. It is typical that the initial claim for damages is an inflated number. The plays that are called to be run may be to diminish the damages claimed.
If liability is subject to a potential summary judgment motion, the question is not only how likely will the motion succeed, but also, if the motion is denied, how does that affect the field position of the parties in the litigation.
However, before you think you can go it alone, think about this for a second. Your opposing counsel also may want to get inside the red zone. This person may have a different idea of what the result will be, but if it is a case that, like most cases, the case is not the perfect case for either party. We may be just talking about the same field position.
Many plaintiffs’ as well as defense counsel will request pre-suit mediation. They want to kickoff and start right inside the twenty yard line. Now, that can be very appropriate if the request is based upon the fact that neither side may possess the perfect case.
Both sides have an opportunity to do a decent amount of investigation so they are both relatively aware of the strengths and weaknesses of the case. If we have these circumstances, it may make sense to suggest that it would be cost effective if both sides settle for a field goal, sand walk off the field with a 3-3 tie.
However, if the request for a pre-suit mediation is for either side to score a touchdown, and get their grand slam, all rolled up in one, the temptation and the proper course of action is to reject mediation altogether, and simply invite plaintiff’s counsel to simply file the lawsuit.
However, we need to look at field position that we have, and what approach is taken to improve on the field position. The purpose of litigation management is not to simply approve the normal course of action, i.e., discovery – interrogatories, request for production of document, depositions, motion practice etc., but really look at every action, and assess and answer the question from the cost of taking the actions, exactly what is the beneficial field position it produces.
Some actions may be the equivalent of throwing the ball downfield for either side based on the ultimate determination. For example, class certification will drastically enhance a class claim, and put the defense side with their backs towards the end zone. The failure to obtain class certification places the ball on the exact opposite end of the field. The poor witness in a deposition similarly will change the field position for both sides depending on which side has the poor witness.
The bottom line here is by looking at litigation in the exact same way that we would implement our strategy on the football field, we add a layer to our cost/benefit/risk analysis.
However, because most cases does end up with some compromised resolution, ultimately, the question is how can we manage the case to effectively get inside the desired red zone where we want to resolve the case.
The better teams, however, will take it a step further. They will know exactly when they are in the red zone. The mistake to avoid is to get into the desired red zone, and then continue to take depositions harmful to the case and filing useless motions. Sometimes, the most important seven words that can come out of an attorney’s mouth is “The case will not get any better.”.
From a litigation management perspective, that is the ultimate definition of getting into the red zone.
