Here’s a tip for small to mid-sized insurers that will not only save on legal costs, but will lead to improved indemnity results as well. I say it’s a tip for small to mid-sized insurers because it’s a tip about something that large insurers already know. And the tip is to use coordinating counsel to oversee or coordinate like or similar litigation that occurs in different jurisdictions.
Coordinating counsel are often used by larger insurers to coordinate product liability cases in which the a manufacturer’s product has led to numerous suits on the same issues in different jurisdictions. Of course, most small to mid-sized insurers do not ordinarily insure large manufacturers. But they do get sued for coverage (some on a more frequent basis than do larger insurers!). So whether it is product liability cases or coverage cases or just about any other types of cases that are similar, but occurring in different jurisdictions, consideration should be given to hiring coordinating counsel.
It might seem counter intuitive to think that paying both a coordinating counsel and a local counsel to defend a case would ever save money. But if handled correctly, using both coordinating counsel and local counsel will save on legal costs – especially in those cases that do not go to trial which is about 96% of all cases. And as an added bonus, it will help insure better indemnity results.
As to the practical benefits of having coordinating counsel, the most obvious and important benefit is ensuring overall consistency in litigation. This would include such things as consistency in pleadings or discovery responses. This consistency can be vital to do as many plaintiff attorneys have joined forces to share strategies, pleadings and discovery from similar types of lawsuits in different jurisdictions. Thus, a misstep in one jurisdiction could easily have costly implications in many other jurisdictions.
To help ensure consistency, coordinating counsel can develop a repository of effective legal arguments that are readily applicable to all cases. Along with this, coordinating counsel can develop a repository of documents produced in response to typical discovery requests. Use of such repositories will not only help ensure consistency of positions taken, but will also save legal costs by preempting the need for local attorneys to “reinvent the wheel.” An added cost savings benefit is that the use of these repositories reduces the often significant disruption to corporate or claims operations that sometimes occurs in the discovery process.
In cases where the coordinating counsel takes the lead role, coordinating counsel can be expected to utilize often considerable experience gained in defending cases involving similar factual issues to perform a more focused investigation regarding the relevant facts of each matter, draft discovery requests that have proven to be effective in similar cases, and ask the right questions at a deposition.
When coordinating counsel assumes the lead counsel role, the role of local defense counsel is often limited to the filing of documents, the entry of routine court appearances, and guidance as to the practices and procedures of the jurisdiction. Of course, many of these responsibilities may be shared with or assumed by local counsel to take advantage of local counsel’s knowledge of the court.
One final word on coordinating counsel. Many times specialized billing arrangements can be negotiated with coordinating counsel in which coordinating counsel agrees to a reduction in hourly rates or agrees to perform the coordinating work on a flat fee basis.
In summary, when faced with like or similar litigation that occurs in different jurisdictions, consideration should be given to using coordinating counsel to oversee or coordinate the litigation. And whether the coordinating counsel takes the lead counsel role or a monitoring role, their presence can help ensure that the defenses are not simply consistent, but the best possible. This not only will help ensure better indemnity results, but it has the added bonus of saving on legal costs as well.