This article was published in Law360 on April 19, 2019. © Copyright 2019, Portfolio Media, Inc., publisher of Law360. It is republished here with permission.
A "virtual law team" is a collaborative and often technology-based team of lawyers, each selected for specific tasks, to defend a single client’s litigation in the most efficient way. As part of a series about virtual law teams in mass tort litigation, this article addresses the critical role of the dedicated "law team," in designing legal strategy, providing analysis of legal issues and drafting the many pleadings, motions and other submissions that this type of litigation requires.
Team-based specialization in mass tort litigation serves a client’s strategic and financial interests. Specialization allows individual lawyers to maximize their contributions by drawing on their strongest talents, so the team as a whole performs at a higher level. Although all the lawyers on the virtual law team for a mass tort, of course, understand the broad strokes of the law that governs the litigation, the law team brings special in-depth focus on the nuances of that law and provides experienced, effective research and drafting skills for the team. The law team also helps identify opportunities to develop or change the law in ways that serve the client’s interests and may serve as a liaison to industry legal groups or potential amici where appropriate.
What Is the Law Team?
The law team describes the members of a virtual law team whose primary focus and responsibility is analyzing the law applicable to the mass tort and working with other team members to incorporate that analysis into overall strategy for the litigation. Although law team members — especially more junior members — sometimes serve additional roles in the litigation, such as assisting with discovery or experts, experience has shown that the law team works best in large mass tort litigation if its members focus on and are always available to address the legal issues that constantly arise. The law team serves a number of roles in the course of the litigation, sometimes in the background and sometimes in the forefront.
Integrity of Overall Legal Strategy
One of the most critical roles the law team plays is developing overall strategy for the litigation with members of the larger team. At its core, that strategy must reflect the client’s and the national coordinating counsel’s goals in the litigation: Is the focus on positioning litigation for early settlement discussions, on narrowing cases or claims to more manageable levels or on defending a product that provides customers with continuing benefits? The law team’s analysis of controlling law can be critical to this evolving plan.
For example, litigation that is governed by federal law or the law of a single state often presents a much different set of legal opportunities and challenges than nationwide litigation that is subject to the divergent laws of dozens of states. The law team both assists with the initial formation of the legal strategy and watches carefully throughout the litigation to assure that the strategy maintains its consistency and integrity — e.g., the law team watches for instances where a strategy or argument in one case or jurisdiction might cross purposes with competing needs and positions in other cases or other jurisdictions.
Assistance in Discovery
The law team assists the discovery team by ensuring that discovery seamlessly incorporates the points that will be most important to legal issues in the case, both on the substantive law and the procedural requirements of the particular jurisdiction. On the substantive law, the law team helps the discovery team concentrate written discovery and deposition questioning on the specific elements of each claim as the controlling law defines them. On the procedural side, the law team can provide particular assistance to the expert team by making sure that the questioning of opposing experts is structured to reflect the governing Daubert, Frey or other standard for expert testimony admission.
Critical Role in Motion Practice
The law team’s most prominent and critical role in pretrial work is its drafting and defending of summary judgment motions, expert motions, and motions in limine. Working with trial counsel and the discovery team, the law team uses its in-depth analysis of the law to examine possible grounds for and to draft motions for summary judgment on the opposing party’s claims or defenses. Working with the expert team, the law team drafts or edits motions to exclude expert testimony and responds to the opposing party’s similar motions. And working with the virtual law team as a whole, the law team drafts and assembles an array of litigation-wide and case-specific motions in limine and case administration motions — e.g., trial procedure, bifurcation, etc.
Multiple Functions at Trial
The law team plays several significant roles at any trial in the litigation of a mass tort. Most crucially, the law team will manage the many legal and evidentiary issues that arise at trial, research issues, and draft motions, bench briefs and responses. The trial team and the expert team will be busy composing openings and closings, preparing witnesses and preparing all the other tools they use to persuade a jury; they cannot allow themselves to be diverted by legal salvos from opponents. If an issue arises or a motion in limine needs to be responded to, they need to be able to hand the project off to the law team with confidence that the issue will be fully, ably and timely addressed.
The law team is also responsible for monitoring the evidence at trial to identify grounds for mid- and post-trial motions for judgment notwithstanding verdict or judgment as a matter of law, and to flag issues for a possible eventual motion for new trial. Again, the trial and expert teams will have their hands full just putting in the client’s case. The scrutiny the law team has focused on the substantive and evidentiary issues throughout the litigation puts it in the ideal position to assemble and draft these motions.
The law team is responsible for the preservation of the record for appeal should an appeal become necessary. While the trial team and the expert team focus on putting in the most persuasive case possible, the law team monitors the evidence to make sure that objections are raised and ruled on, that offers of proof are made, that necessary instructions are requested and that other necessary measures are taken to preserve on the record all the issues that the client might want to raise on appeal.
Assumption of Primary Role in Post-Trial Proceedings
Once the trial is over and a verdict is returned, the other teams’ work is largely done, but the law team’s work continues. If the verdict is against the client, the law team will draft and argue the post-trial motions based on the issues and objections raised at trial. If the verdict is favorable, the law team will response to any post-trial motions by the opposing party. And in either event, the law team will draft the briefs necessary for any appeal.
The Law Team Attorney
As the responsibilities outlined above suggest, the attorneys on the law team focus their practices on legal research, writing and oral advocacy. They have an intuitive understanding of legal research and perform it efficiently and effectively. They are well acquainted with both the nuances of substantive tort law and the details of the rules of evidence, and they are able to draft and respond to motions and briefs on a broad range of topics quickly and persuasively. Finally, they seamlessly integrate their work with the work of all the other members of the overall team in every stage of the litigation, recognizing and accommodating the competing priorities that always arise in mass tort litigation.
The law is of course a part of the work of every member of the virtual law team, but not every member can make the law the main focus of that work. The law team serves the other members of the virtual law team by taking the laboring oar on legal issues and providing answers and assistance where the law intersects the work of the trial, discovery, company and expert teams intersects. The law team relieves the other teams of having to focus on the law, freeing them to devote needed time and energy to their own areas of special expertise. The law team is thus a critical component of the virtual litigation team, and its work is critical at every step of any mass tort litigation.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.