We are all aware, some painfully so, of banner headline jury verdicts. They have now breached the $1 billion threshold and are ubiquitous in the news, on billboards, in airports, and just about everywhere else.
We also know how we got here—through the perfect storm of political and cultural polarization, social inflation, COVID-19 angst, corporate mistrust leading to anti-corporate bias, and plaintiffs’ attorneys honing their reptile theories to an art to get juries to send messages with high numbers. The higher the number, the clearer the message.
The big verdicts have led to a trend of bigger settlements as companies seek to avoid facing the reputational damage of being “canceled” or suffering a bet-the-company “shock” verdict. Just ask the major transportation company that recently settled a wrongful-death suit for $150 million involving a vehicle left parked in the lane of travel by one of its drivers and causing the deaths of two juveniles. The reason for the high settlement? “Corporate defendants are facing ‘nuclear verdicts’ across the country….” And there appears to be no end in sight to this alarming trend.
So what do corporate defendants do in this unfriendly, volatile environment?
The New ADR: Collaborative Litigation
We suggest an alternative to the rough-and-tumble litigation we are so familiar with today. Collaborative litigation brings plaintiff and defense counsel together to resolve cases as early as practicable instead of engaging in a long, drawn-out, and costly adversarial and confrontational process that takes valuable time from a corporate defendant’s business to fight cases that are likely to settle anyway. This admittedly counterintuitive process would involve a sincere commitment by the lawyers and parties to work through issues sooner and, hopefully, come to a resolution on reasonable terms that contains or lessens the risks both parties would face in the courtroom.
The collaborative litigation process would be negotiated by the parties and be reduced to a written collaborative litigation agreement signed by the parties and their clients that would govern the proceeding. The agreement would be straightforward and contain standard or fundamental terms so as to facilitate the process and create an environment for collaboration and cooperation. It should also allow for some flexibility so that, if progress is made, the process could be extended by agreement. The parties would pledge to act in “good faith” to resolve the case. The parties would also agree to other terms—for example, in a case where litigation has already been filed, the parties would agree to a stay or standstill of the litigation while collaborative litigation is explored. Any deadlines would be stayed pending collaborative litigation. Of course, ideally, collaborative litigation would be pre-suit, preferably six months to a year prior to the expiration of the statute of limitations, before fees start piling up and the adversarial litigation begins, but that’s not always possible.
Collaborative Litigation in Action
Regardless of pre- or post-suit commencement, the collaborative litigation process would be totally black boxed, or confidential, and not used by one party against another. It should be limited to a defined period of time, say 60–90 days, sufficient to fully explore resolution, and agreed to by the parties. The parties would begin to request information—even informal interviews of key witnesses and parties, including experts—and engage in sharing documents, medical records, and information during the timeline for purposes of evaluating liability and damages. Of course, the parties also could agree that this discovery be more formal for use in litigation should the collaborative litigation result in an impasse. If there are factual and legal issues that are outcome-determinative, they would be identified up front, pre-suit or after a suit is filed, and with transparency so they may be dealt with by the parties.
The parties could jointly or separately conduct nonbinding summary jury trials or mock trials, and/or engage experienced, agreed-to mediators to facilitate the process. Mediators could weigh in on difficult issues to move past logjams. As with any process, there will be difficult patches along the way.
The collaborative litigation process also could be aided by social media, which is basically free discovery that would normally take years to develop in traditional litigation, and emerging technology with AI. Specifically, social media is a treasure trove of publicly available and easily accessed information about an event, the victims, injuries, and potential damages. This information should be collected, analyzed, and updated to be used in early assessment and evaluation.
In the Details
Predictive analytics may augment collaborative litigation to help define whether a given case is likely to end in a favorable outcome, and how much a reasonable target settlement would cost. There’s a wealth of data now available on cases, judges, rulings, litigation costs, timelines, and more that can be assimilated and used to assess whether a given case is likely to end in a favorable outcome.
By comparing the features of their case to historical data, attorneys can make quantifiable predictions on how lengthy the litigation might be, whether it would settle or go to court, and whether the costs of carrying out the litigation would outweigh the potential rewards. Additionally, it can assist with budgeting, cost estimates, scheduling, and capacity planning.
Predictive analytics could also be used to predict rulings on legal issues based on the success of such rulings before the same judge in similar types of cases. And of course, it could be used to predict what kind of jury you are likely to get in a given venue and how that jury would likely decide a case on the facts and instructions given. Although the predictive tools of AI are not by any means perfect today, advances to improve its accuracy are literally made daily. In any event, it is a useful tool and reduces the guesswork many attorneys engage in to evaluate their cases.
The benefits of this process for plaintiffs’ counsel would be twofold: early resolution for their clients who likely need the money and closure, and a nice recovery in fees without incurring substantial costs with experts, discovery, lengthy and risky motion practice, and so forth. The process would involve a structured approach to include early assessment and evaluation of the claim by the attorneys for both sides. The predictive analytics of AI could play a significant role in this process by whittling down the issues to the essence of the case and at least narrow the issues that remain in dispute. This process would be especially suited to high-value cases.
If the case does not resolve in collaborative litigation, nothing the parties discovered in the process would be admissible or used against the other party unless stipulated. This would be similar to a formal mediation, which is also conducted under the veil of confidentiality.
While collaborative litigation is not suitable for all cases, the specter of big verdicts and the unpredictability of juries poses a huge threat to corporate America. Business values certainty over risk, and this is a way to contain or eliminate risk altogether, with the lawyers on both sides working together to resolve rather than aggressively litigate. The energy expended would instead be directed to resolution. In the end, if it does not resolve, there is always the traditional jury trial as a last recourse, but only if collaborative litigation fails. This concept requires buy-in from both sides and a great deal of reasonableness from all to be effective. It goes against many natural instincts and the origins of the adversarial system, but it may be the only option for all to benefit from the current litigation landscape.