For background, defense attorneys should understand the expectations of their clients on pre-litigation communication surrounding the key issues. Expert Daniel Ingberman and his colleague Asrat Tesfayesus published an article, “The Law and Economics of Concealing Health and Safety Information,” in the Journal of Law, Economics & Policy in 2017 that offers a cost and benefit analysis explaining how firms may (or may not) decide it is in their best interest to conceal information and why others may choose to collude in such concealment. Discerning your clients’ past incentives and actions helps you create a strategy and explain the options to them moving forward.
Some mass tort cases are very much in the public eye. Next up, then, is delving into your network of specialists to understand how the community views the event and to help shape that view. Attorney John Trimble works on some cases with a fair amount of notoriety, and top of mind for him are public relations (PR) consultants:
Anybody who is representing a party in a major catastrophe needs to have a PR consultant. They perform a whole array of functions that can be very essential at the beginning of the catastrophe as well as later. At the very beginning, you need a PR consultant who can monitor social media and news and see what is being said. Whether it is truthful, whether it is accurate, or whether it is totally off base, and offer advice as to whether your client should respond. Clients want to respond and quite often they respond incorrectly, or they respond with no comment, and they can make the situation worse by how they approach it. The PR consultant is available to help you and the client craft a strategy for how to respond, and that means drafting public statements, drafting social media postings, prepping the client representative for interviews, and prepping the lawyer. If the lawyer is going to be interviewed, creating an overall PR strategy is going to help at least shape the sharp edges off the public sentiment. They will also help you understand just what the public is thinking. I will use the state fair as an example. After the [Indiana] State Fair stage collapse, there was great horror and dismay from everybody for what had happened. But what we learned from our PR consultant was that the state fair was a beloved institution and hardly anybody in the community had not gone to the state fair at some point in time and had fond memories. Everybody wanted the state fair to survive this event, to go on, and reopen. What we learned was there was a reservoir of public support and warm sentiments that was underlying what was being said at the moment. […] If that is the public sentiment, then our public statements and our interviews would have to be based on our knowledge that people love the state fair and would be forgiving, which they were. Without a PR consultant, you are just simply left to guess about those kinds of things, so that is critical.
Trimble additionally uses jury consultants and stages mock trials during his preparations. He’s also strategic about venue and asks the court for injunctive relief:
There is a Model Professional Rule of Conduct 3.6 which prohibits lawyers from making statements in the public domain that could influence pending litigation. One of the other tools in the toolbox is to be prepared if you must ask a court to enjoin lawyers or their representatives from speaking out, particularly inaccurately, about what is being said concerning the event that happened. That is kind of the second tool. I should also mention when you talk about pretrial publicity, plaintiff’s lawyers also hire PR consultants. During the [Indiana] State Fair case we were seeing media placements that were either coming from the plaintiff’s bar or from other defendants that were seeking to shape the public discourse about the state fair, so it is not just the defendants who use PR consultants. The plaintiff’s lawyers used PR consultants as well. Thus, injunctive relief is the next thing that comes to mind.
Once the attorney and client have addressed any immediate crisis, there are the litigation experts to consider. With an already complicated ensemble, it is easy to overlook keeping experts informed and assisting them in playing their part to the best of their ability. Expert Leslie Hendrickson notes three areas where he has occasionally had difficulty communicating with attorneys:
- Gaining the information needed: “The attorney needs to put the witness in touch with the client so the witness can find out what data the client has and get the data and verbal history of the case. This should be done early in the process. It would help if the attorney candidly discussed the client with the witness. My experience is the client is often emotionally over the edge. The [opposing side] has driven them out of business and the client is up to their waist in business losses, debt, legal fees and anger.”
- Instruction on report preparation: “Rebuttal attacks on my work have varied from crude hatchet jobs to the use of incorrect data, or inapplicable logic models. I get little direction in how to prepare my own rebuttal report against the other party’s rebuttal.”
- Following up at the end: “When they stop using your services or change your scope of work, you never find out why. It is impolite to ask, and you do not know if they will be candid. Getting more feedback on the quality of work would be helpful.”
While the last of these may not be important for the particular case at hand, it is great for the next one down the road, and everyone does better with a little constructive feedback.
Thus, a key element to making your case run smoothly is ensuring that everyone understands their role and stays up to date, including the experts coordinating with each other. Craig Schlumbohm tells a story about how one expert going off script dramatically affected other experts:
We were involved in a case where we had multiple experts from multiple companies, and it was a linchpin in the case. There was an expert that spoke to one scientific topic. In his deposition, [… that] expert said some things that we had not heard from him before. After many meetings and conversations regarding aspects related to a building for the first time, he started talking about different components. There were structural issues on a building, and we had heard him say things about, “Well, maybe this was a problem.” It beat us up as an expert team because we are all sitting back and had to recover because of that one. I was dealing with some of the architectural issues and the cost of repair, and suddenly my foundation fell apart because the building foundation fell apart because of the way case the case went on from there. We had different experts on structure, windows, and roofs[.] [I]t shot the whole thing out of the water because we had an expert that, for whatever reason, went a different direction.
Like the conductor of an orchestra, the attorneys leading a mass tort case need to keep all the members of their team working together to create one coherent, elegant piece that speaks eloquently for their client. When a litigator chooses the right players who are kept in the loop with regard to both their part and how they fit into the whole, the chance of them all playing well together increases dramatically.
