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CASE MANAGEMENT: THE IMPORTANCE OF NATIONAL DEFENSE COUNSEL 

by Edward P. Abbot

When is national defense coordination of cases necessary? The answer is clear: if you have at least two cases in two jurisdictions, then you require national defense coordination. It is an essential ingredient of success whether you hope to settle or expect to try complex litigation.

There are basically three players which make up the defense team: In-House Counsel, National Defense Coordinating Counsel, and Local Counsel. Each of these three players must be committed to working in partnership with the other over the long term. These three parties must establish guiding principles that will form the basis for a cohesive resolution strategy.

Quite simply, the goal of the defense is to obtain the best result for the client in the most cost efficient manner. There are essentially 9 ways utilizing National Coordinating Counsel achieves this goal:

1. Cutting administrative costs;
2. Increasing efficiency/reducing waste;
3. Reducing settlement costs or verdicts;
4. Providing high quality attorneys and services;
5. Centralizing litigation;
6. Exercising control over the litigation and product liability process by controlling pleadings, discovery and depositions, motion practice, trials, appeals and settlement negotiations;
7. Obtaining real value for dollars spent;
8. Developing sound defense themes and strategy; and
9. Avoiding surprises (one can always deal with negative results, but not always with surprises).
Goals and strategies, as well as budgetary questions, must be clearly understood by all of the players in order to minimize surprises. The three must form and maintain a consensus on liability. Communication among the three players must be frank and honest. Reporting requirements and regular meetings are necessary in order to provide regular feedback to the client. To this end, e-mail and other secure communication software should be utilized for a direct and quick line of communication among the parties. In-House Counsel, National Defense Coordinating Counsel, and Local Counsel must each understand their respective role, in other words, who decides what. Decisions must be made regarding: selection or termination of local counsel; procedural issues; preparation of cases; discovery; pre-trial matters; dispositive and summary judgment motions; trial strategy; trial duties; settlement strategy and negotiations; appeals; ADR/mediation/ arbitration. 

In order to facilitate the process, there should be a method for budgeting, forecasting and tracking the cost of the overall litigation, rather than just looking at one case or one firm's account. Bills and billing prac tices need to be standardized and followed on order to help avoid unanticipated problems. Local counsel's billing should be monitored by National Defense Coordinating Counsel for work performed and avoidance of possible redundancies.

The arguments in favor of the retention of National Counsel are overwhelming. Ideally, National Counsel should possess the following attributes:

1. National Counsel should be experienced, first-chair trial attorneys with a depth of procedural and substantive experience in product liability law.

2. National Counsel should lead local counsel by way of example because its philosophy of case management and defense strategy is compatible with that of the client. 3. National Counsel should have the enthusiasm, commitment and flexibility to perform diverse tasks.

4. National Counsel should be predictable and consistent in performance and approach.

5. National Counsel should have the requisite personality and credibility in dealings with the client, local counsel, co-counsel and adversaries. 

6. National Counsel must be oriented to controlling costs for the client. 

7. National Counsel can avoid "reinventing the wheel" because it has confronted similar problems and issues across the country. 

8. National Counsel should strive to put the client in the best position in order to resolve cases before trial, at settlement conferences, mediations, ADRs and arbitrations. 

9. National Counsel should know the "market" for settled cases and be able to educate plaintiffs counsel on case value from the client's perspective and should know the verdict trends.

10. National Counsel should be able to maintain negotiating credibility through consistent, centralized negotiations. (The more settlement negotiators there are, the more inconsistent you will be perceived by opposing counsel.) 

11.National Coordinating Counsel should have the administrative capacity to handle calendaring, coordinate discovery, prepare for and staff trials, oversee costs, track case filings and trends, and field concerns from the client and local counsel. 

12. National Coordinating Counsel should have strategists who do legal research, devise defense tactics, brainstorm, spot issues, react to unanticipated developments and arrive at solutions. 

13. National Coordinating Counsel should have a support staff of medical professionals and technical paralegals who assist in discovery,medical preparation of the case and trial preparation. 

It is crucial to develop an effective long range defense strategy early. All activity in individual cases should echo the defense theme. Investigation should lead to a solid, supportable product story from development to design, testing, marketing, customer relations, government regulations, personnel and documentation. At trial, the defense theme is then explained at the opening, reinforced during presentation of the evidence, and retold at closing.

Asbestos litigation is an example of the team approach. In-House attorneys are the key resource of company information and they act as a liaison between the company and National Coordinating Counsel. They spearhead investigations on company history and corporate witnesses. They work directly with National Counsel on problematic expert and discovery issues.

National Coordinating Counsel in asbestos litigation works to achieve a unified defense by supervising local counsel and by developing case management, settlement and trial strategy. It maintains national trial and discovery calendars. It develops model discovery responses, thus avoiding any exploitation by plaintiffs of seemingly inconsistent answers. It develops databases of information that run the gamut from recent case law on privilege and work product to depositions and experts and medical records and product identification and exhibits. It may conduct depositions of national experts; conduct medical and technical research; provide standardized motions; attend national defense counsel meetings; review case management orders; and evaluate settlements. 


Local counsel in asbestos litigation handles day-to-day matters and masters the local terrain of jury pools, court rules and personalities. It obtains necessary authorizations and records and communicates deadlines and other developments to National Counsel. It consults with National Counsel on proposed case management orders, joint defense agreements, the retention of independent medical examiners, and settlement evaluations. It attends local defense meetings, but its trial responsibilities are handled on a case-by-case basis.

In sum, complex litigation greatly benefits from a coordinated team effort of in-house counsel, national coordinating counsel and local counsel and should be seriously considered when attempting to contain costs in mass tort litigation.

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