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A. DePompolo Products Investigations
Early Investigation and Evaluation Program
a Comprehensive, cost-efficient investigation services for evaluation and management of product liability lawsuits.
a Stay or eliminate costly formal discovery through mutual cooperation.
a Understand, evaluate, and manage exposure risk.
a Collect facts sufficient for client to assess interest in early resolution of matter.
a Provide framework for allocation of future resources.
a Organize and implement initial defense plan.
a Allow for smooth and efficient transferability of cases from program.
a Reduce overall litigation costs.
This plan describes and lays the foundation for the initial stage of litigation management. Other attempts have been made to implement similar programs with varying degrees of success. However, the author of this proposed plan has included the best features of other plans and removed or altered nonproductive elements to success.
The Early Investigation and Evaluation Program (herein after EIEP) is a tool for case managers to balance risks and costs and perhaps most importantly, it is a tool for planning defense strategies. Although each case will be evaluated for settlement potential, it is not designed as an early settlement program. The goal of the plan is to lessen overall legal costs by identifying cases that have sufficient merit to litigate to a verdict and weed out, as early as possible, those cases that should be settled. In most instances, it is not economical to litigate a case for years, often spending huge sums of money, only to settle on the doorsteps of the courthouse. Therefore, this program may be considered to be a modest front-loaded effort at creating savings in the long run. However, savings will not only be enjoyed by eliminating cases early, but through informed case planning.
Corporations in litigation have spent billions of dollars each year. Little of that money has been spent assessing, evaluating, and planning the defense. Consequently, resources were often directed at reacting to plaintiff assertions, regardless of the merit, or in defending suits that had little likelihood of ever getting in front of a jury. If resources were better allocated through planning, conservative industry savings of even ten percent would yield savings in the hundreds of millions of dollars for corporations each year. Therefore, even if the desired outcome of an individual case is for early settlement and no early resolution can be accomplished, this plan will allow case managers to understand the facts, evaluate defense posture and allocate resources appropriately to ultimately reduce overall litigation costs. It is a win/win proposal.
The key to the success of the EIEP is in the plan participants and adherence to the spirit of its intentions. The plan participants must be selected from the pool of experienced product defense investigators, outside counsel, client legal staff and engineers. Due to the tight budgetary constraints of this plan, personnel resources must be sufficiently focused to yield the greatest advantage.
Case teams will be kept small, usually one investigator, and paralegal, associate, partner and client engineer. The data collection and assembly will generally be completed by the less costly investigator and paralegal, monitored by the associate and evaluated by the case-managing partner. Since data collection is expected to be comprehensive, engineering services will initially be kept to a minimum, generally only to advise in the course of facts collection. For instance, the fact collectors should conduct preliminary site and product inspections to reduce civil and mechanical engineering services by collecting basic facts. Where product inspections are necessary, client in-house engineering staff should complete the inspections. However, the EIEP will reserve reliance on client and outside engineers to only those cases that cannot otherwise be fully evaluated without such services.
There are five phases in the EIEP:
a.) Investigation (fact finding and data collection)
b.) Assembling material in understandable forms; Case Summary
c.) Evaluation and assessment; Case Evaluation
d.) Decision on case handling
e.) Settle, transfer, or implement case plan
The client will receive at minimum two documents, a Case Summary and a Case Evaluation. The client will also be presented with important reports and photographs.
The plan participants hold out that the fact finders will secure sufficient information for case managers to understand and evaluate the claim. Furthermore, the investigation will serve as a basis for future handling and defense planning. In numeric terms, the investigation will yield 100% of the facts necessary to evaluate the claim under this program which translates into approximately 70% of the investigation that may ordinarily be accomplished by trial. The investigator(s) will be selected on a per-case basis. However, since the budget will not allow for the common investigation approach of "turning over every stone" until something of value is located, the investigators operating under this program must be accomplished product investigators and sufficiently focused.
Due to the greater sophistication of product plaintiff lawyers, key fact witness interviews, should in most instances, be conducted in person and statements obtained. Most defense lawyers have been reluctant to allow the field investigator to take fact witness statements. Generally, the rationale for not taking statements has been for fear that the investigator may obtain information that may actually be helpful to the plaintiffs because the investigator was not aware of the issues of a complicated products liability case.
By and large, lawyers did not delegate the statement-taking, decision-making process to the investigator. Under this EIEP, greater reliance should be placed on statements to reduce discovery deposition costs. If the investigator is knowledgeable of the issues of product cases, there is no reason to believe that the testimony obtained in a sworn statement taken by an investigator would materially differ from the testimony obtained in a deposition.
Investigation costs based on volume including expenses will be $9,450 per case, anywhere in the continental United States for moderate and catastrophic exposure cases. Some cases will cost plan participants more and some may cost less. Local investigators will be used where competent and cost-efficient persons are located. However, accident locations cannot be controlled and even a "local" investigator may have to travel several hours. For instance, using M. A. Products Investigations from Minneapolis, Minnesota would actually be 20% less expensive, than say for example; using a Detroit based investigator for a Grand Rapids, Michigan investigation.
Sample investigation costs are broken down as follows:
$7,500 100 hours of investigator time at $75 per hour
$ 800 Travel costs
$ 500 Meals and lodging
$ 350 Ground travel (car rental)
$ 300 Photographs and documents costs
$9,450 Total average cost for volume per case investigation
Budgeting for the expert engineers should be considered separately.
b.) Assembling and Organizing Facts: The EIEP Case Summary
Information is meaningless unless it is assembled and organized in an understandable form. The material collected in the EIEP will be analyzed, boiled down and presented in the Case Summary. The Case Summary will serve as a single source reference for case facts. If the case is removed from the EIEP and further litigated, it will serve as a tool that counsel can continue to use during the pending suit.
c.) Evaluation and Assessment: The EIEP Case Evaluation
If the Case Summary is the "heart" of the EIEP, the Case Evaluation is the "soul." The Case Evaluation presents the meaning, the essence, and the merit of the suit. Counsel will prepare the Case Evaluation. It will recommend client posture, settlement potential, litigation costs and future handling. It will serve as the basis for corporate client's decision-making process.
d.) Decision on Case Handling:
If the client is satisfied that it is equipped with sufficient information upon which to base a decision on case handling, that decision will be carried out by plan participants.
e.) Settle, Transfer Or Implement Case Plan:
With the EIEP Investigation Plan completed, the investigation will either be permanently or temporarily placed on hold based the decision of the client. Generally, even if the case continues, the majority of remaining facts will then be collected and documented through formal discovery by counsel. There may be periodic involvement of an investigator to develop facts more cost efficiently as the issues of the case are refined.
The success of the program is, in part, dependent upon the judicious reliance on client engineering and legal staffs. For example, since limiting cost may limit hiring outside engineers, except in certain instances, the plan cannot burden client engineering staff. In essence, shifting engineering services from outside vendors to the client does not necessarily reduce cost; it only shifts cost responsibility. Rather, client engineering staff should play a role in the advisory and evaluation stages of the program and not be primary fact collectors. The non-client plan participants should collect facts for engineering evaluation. Again, this plan relies heavily upon the fact collectors as being knowledgeable of product investigations and corporate defense.
Outside counsel, as in the case of all outside vendors, will be hired by and work at the direction of plan participants. Fees will be paid out of the case budget. Since the budget does not allow for duplication of efforts, tight control over persons that are working on the file will be essential. The case-managing partner and associate will select the team and monitor progress. The role of outside counsel may range from simply a pleading drop box for filing to more fulsome responsibilities of carrying out the directives of the EIEP case.
Since each case is different, the manner in which information is collected and packaged will differ, requiring persons with particular expertise to be involved. For instance, if an issue can only be developed or explained using an exemplar product, it may be far less expensive to use a computer modeler than to obtain an exemplar unit. Models that once cost in the tens of thousands to produce can now be purchased for a few hundred dollars. Under the budgetary constraints of the EIEP, incorporating current technology is a necessary component in maintaining costs.
i Failure to obtain cooperation with plaintiffs.
i Allocating resources inefficiently.
i Inability to respond to plaintiffs' request for documents.
i Lack of focus and direction.
i Unable to control costs.
i Refusal to adapt to the changing times in the practice of law.
i Enlisting the wrong people.
The EIEP will assist the corporation and counsel to make informed decisions on case planning and handling which would ultimately reduce overall litigation costs. The EIEP investigation is a cost-effective means of obtaining the necessary facts to allow that decision-making process to occur. Using knowledgeable plan participants, fact collection can be streamlined and focused to yield the greatest benefit at the lowest cost. Investigators should no longer be expected to answer the question of “what happened.” Such an open-ended expectation leads to increased billings and all to often, piles of useless information. Rather, the question products investigators should answer is, “What do we need to know to win the case.” M. A. DePompolo Products Investigations believes it can meet this higher expectation for moderate and catastrophic exposure cases at costs less than multi-line investigators. Furthermore, involving M. A. DePompolo Products Investigations in case development will afford smooth integration of the investigation and ensure that the necessary facts are collected in a cost-effective manner.