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Hollingsworth LLP Hosts 30th Annual Defense Litigation Seminar amid the "noisiest" year ever.

Was 2017 the LOUDEST YEAR EVER??  It seemed so, as a cacophony of clamorous teasers, important information, disputed allegations, and #fakenews arrived, volume blasting.  For those who are in charge of keeping cases and clients steady, quiet has been hard to come by – so we need to parse the noise itself.  Among the topics at the 2018 event – the new normal of social media background sound influencing litigation; tools that can dampen the clanging consequences of litigation tourism and third-party funding; and clues in announced Administration policy and in responses to bombshells in certain high-profile litigations that can inform litigation strategy ahead.  And all while celebrating the 30th Anniversary of the country’s longest running defense litigation seminar of its kind.

Joe Hollingsworth and Heather Pigman kicked off this milestone anniversary with a look back over 30 years of a few key Seminar teachings, with reflections on how things are playing out, including the promise of Daubert, disappointments in preemption, restrictions on punitive damages, checks on abuses in MDL/mass tort dockets, truths behind bellwether trials, and how to use to your clients’ benefit the existing rules and those that have changed.

In “Sounds of Silence,” Robert Johnston and Don McMinn explored how to determine the right data to use to test settlement strategies in mass tort litigation.  They reviewed important factors that defense counsel should always consider before entering settlement – including the social/demographic context of any trial, scope of insurance coverage, extent of plaintiff counsel’s reliance on third-party financing, and the psychological framing of settlement negotiations by plaintiff counsel.  In so doing they also discussed obstacles to settlement and the impact of incomplete and inaccurate data on settlement analysis.

In “Listen Up,” Bill Cople and Fern O’Brian explained why everyone should be paying attention to opioid litigation, which continues to embroil a range of industries including pharmaceutical manufacturers and distributors.  They discussed how the plaintiffs’ bar and federal prosecutors and regulators are developing new claims in civil and criminal litigation to impose liability and utilize both new and old litigation and regulatory enforcement strategies.  They spoke about recent civil claims and criminal prosecutions that plaintiffs and DOJ have been pursuing, including opioid multidistrict litigation and class actions, and investigations and litigation brought by the federal government and state attorneys general.  Lastly, they looked at how the still-widening litigation may impact products liability and government claims in other industries.

Martin Calhoun and Kathryn Jensen presented on the excess noise and headaches created for corporate defendants when facing lawsuits in pro-plaintiff jurisdictions far from home, and examined recent limitations on plaintiffs’ litigation tourism efforts following the groundbreaking decisions in BMS, Daimler, and Walden. They explained the plaintiffs’ bar’s new tactics to continue the game of musical chairs in state and federal courts in both consolidated and individual litigation, and pointed out that, with the right defense strategies, courts across the country may properly interpret recent Supreme Court precedent as the swan song for litigation tourism.

In the last presentation of the morning, Neil Bromberg and Jim Sullivan spoke on the chaos, consequences, and opportunity from social media.  They looked at the ethical limits, regulatory guidelines, and litigation considerations affecting lawyers’ and parties’ use of social media outside the litigation process, and then looked inward at social media issues that arise in litigation, including ethical and procedural rules and how the courts are handling related discovery, evidentiary, and jury matters.

Kirby Griffis and Frank Leone opened the afternoon session by providing an overview of the Trump-era impact on litigation in general and how to manage your message to your jury in this new environment.  Highlights included how President Trump’s actions are affecting the make-up of the federal judiciary; legal standards through regulatory actions, executive orders, and legislation; DOJ actions, including prosecutions, appeals, settlements, and amici; and, finally, how juries view claims.

Don Fowler and Eric Lasker looked at the unique challenges presented by high-profile cases in dealing with media, managing public relations, and minimizing client reputational impacts, all of which pose the strategic question whether to create counter-news via voluntary investigations, third-party discovery, or data generation.  They examined two case studies in which defendants used different approaches to respond to highly publicized allegations of wrongdoing in the context of anticipated or ongoing litigation:  GM’s response in 2014 to allegations of defective ignition, and Monsanto’s response to an outlier International Agency for Research on Cancer classification of the herbicide glyphosate as a probable human carcinogen.  Through these case studies they pointed out the potential risks, benefits, and repercussions of creating counter-news to disrupt the plaintiff narrative.

Kate Latimer and Ron Dhindsa welcomed panelists David Panzer, Chief Counsel for Litigation and Claims, DynCorp International, Paul Slater, Executive Counsel-Environmental Tort Litigation Global Operations, EHS, General Electric, and Sara Zausmer, Litigation Counsel, Novartis, all of whom provided valuable insight on the subject of “Volume Control.”  The conversation explored how in-house counsel teams must counsel their clients on whether and how to deal with the escalating noise that travels with all high-stakes litigation in the #breakingnews era.  How much to say, how loudly, and to whom, these discussions implicate compliance issues to be sure, but also reflect decisions on branding, long-term litigation strategies, and tolerance for media attention.

In “Meet Me in St. Louis,” Steve Klein and Gary Rubin opened with the sound bite that “[t]he City of St. Louis courts are known for fast trials, favorable rulings, and big awards.”  They tackled key questions about third-party investors who become stakeholders in litigation outcomes, including who pays for plaintiffs’ counsel to trawl for clients nationwide, engage in endless depositions, and prosecute cases for years, who these investors are, and what roles they play.  They also examined legislative developments seeking disclosure of previously hidden agreements and a survey of recent favorable case law on discovery of third-party litigation funding, and they concluded with recommendations on what defense counsel can do to leverage any information received.

To wrap up the 30th Anniversary program, Greg Chernack and Matt Malinowski presented on ethics.  In the face of increasingly common eight- and nine-figure jury verdicts, they looked at various jury and witness interactions with counsel as potential reasons for the proliferation of this apparent anti-defendant movement.  They examined current hot-button topics such as concealed expert witness payment arrangements, the improper conversion of “treating” physicians to paid experts controlled by plaintiffs’ lawyers, plaintiff lawyers’ abuse and misuse of litigation lending to drum up high-value plaintiffs, and one-sided accusations of witness tampering to further imbalance litigation playing fields in plaintiffs’ favor.  Lastly, they analyzed the ethical implications of jury pool research, social media snooping, and post-verdict juror interviews.

The seminar was typically well attended and well-received by in-house counsel, members of the defense bar, and others similarly aligned in the defense of complex litigation.  Reviews from this year's attendees include:

“An excellent way to learn about trends in defense work at an extremely professional event.”

“Best seminar I attend all year.”

“The seminar is very valuable for the assessment of exposure to litigation, settlement values, and likelihood of success for lawsuits pending across the U.S.”

“Great presenters and valuable information.”

“The seminar is very useful in updating counsel on significant litigation trends, especially for corporate defendants.”

If you are interested in an abbreviated version of the Seminar on one or more of these topics, or a more targeted presentation tailored to the litigation issues you face, please let us know.  Our partners can present to you and your colleagues at the location and time of your choosing.   

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