SUCCESS STORIES

Rescue

An excess insurer was on notice but not on top of a commercial product liability lawsuit. It had no reason to be: the insured had a hefty SIR, veterans in its legal department, and assurances from its regular coordinating counsel that the case would be resolved before the SIR was exhausted. But regular counsel was exhausted before the SIR. The plaintiff, a multinational company and the largest in its field, had turned to a global top-10 law firm, which had deployed a legion of lawyers to wage all-out war. Regular counsel had not anticipated that the large law firm would do what large law firms do. Suddenly, the excess carrier was being summoned to start writing big checks.

The excess carrier asked one of our consultants to reassess the case, to put “fresh eyes” on the problem. He found legal defenses that had been overlooked. He identified technical defenses that had not been explored. He prepared witnesses like they’d never been prepared before. Within weeks, the legions had been stalled, and a case that was headed well into eight figures was disposed of for far less.

New Arrival

An Asian manufacturer had a growing business. Its products were popular throughout the world, especially in developing countries. Its machines were powerful, reliable, and affordable. It decided to give the American market a go.

Its products took off. Its market share exploded. So did its product liability exposure. Claims arose. Lawsuits were filed. Its excellent insurer hired excellent lawyers, but each lawyer focused on a particular tree, and not on the rapidly expanding forest.

Soon, the company was targeted by a plaintiff lawyer who specialized in weaponizing discovery. The company got sanctioned. The company got sanctioned again. When the case went to trial, the company got hit.

One of us was hired for a top to bottom review and revamp. We overhauled the company’s approach to discovery. We coordinated counsel. We tapped and trained company witnesses to tell the company story candidly, consistently, and compellingly.

The discovery wars fizzled. Defense verdicts began rolling in. The company was no longer a target. Its market share continued to grow while its PL expense and indemnity plunged.

Perspective

After the umpteenth time the company had to produce damning documents, it decided to turn to our consultants for help. Its engineering was excellent, but its emails were execrable. We developed and delivered bespoke training for engineers and managers on US and ROW (Rest of World) product liability regimes. The goal was to offer a new perspective, to create an awareness of the consequences not only of what they did but how they wrote and spoke about it. We held training sessions to open the eyes of engineers and managers—who, after all, were focused on engineering and managing—to how plaintiff lawyers would misinterpret decisions, and misread and misuse remarks. And we helped the company institute a document management policy that preserved what mattered without the chatter.

We had a sense of success when each session ended with lively and long Q&A and sidebar discussions.

Just this year, one of those trainees walked in for deposition preparation. “I remember you,” he said to our consultant. “You changed the way I work. You taught me how to express myself.” He was right. His documents were magnificent. His testimony was forthright and compelling. The plaintiff lawyer left rather dispirited.

Lifeline

The pandemic hit some legal departments especially hard. Suddenly short staffed, one Fortune 50 company asked us to lend a hand. The plan was for a consultant to devote 50% of his time on case management. But we were able to do the job in about half of that, and we quickly identified areas of actual improvement. We put together a proposal to increase efficiency and effectiveness through training, education, and organization. New employees quickly got their groove. Veterans wondered why the company had never done these things before. By the time we left, employees were happier and more productive than ever before.

Fallout

An auto manufacturer issued a global safety recall. Inevitably, it was hit with product liability claims, rather a lot. The company feared it had not choice but to pay; after all, it had admitted a defect. We were summoned to help by the company and its insurers. We established a robust protocol to investigate and assess the claims--to separate the legitimate from the opportunistic.

One claim was brought on behalf of a person who was profoundly and permanently injured. Her damages numbered many millions. The clients' exposure exceeded the OEM's retention into several layers of coverage. Our investigation concluded that the damages were not attributable to the defect. The part broke because of the crash, not because of the defect. We developed the defense. We managed document and electronic discovery. We prepared witnesses. We negotiated, but the other side was unbending. Counsel were sure the clients would cave.

They didn't. They were confident in their preparation and position. After a 2 week trial ensued, the jury returned a defense verdict.

Relationships

A global industrial concern had many products in many markets for many years. It also had many insurers. They changed almost every year. And when they did, underwriters and claim managers who knew the business moved on too. The company had to educate a new team. This grew problematic and tiresome. The company wondered if stability were possible.

We got the call. We scoped the situation. We proposed a solution. We worked with brokers and insurers to foster a “partnership“ between the business, engineering and legal people on the one side, and the insurance professionals on the other. Together, we structured a long-term relationship. The company got broad, substantial coverage. It retained the freedom and responsibility of primary risk management. The insurers got the security of good risk and claim management, and avoided last minute hot potato hand-offs.

The relationship has endured for many years, to the great benefit of all parties.

Ambush

The technical director of a prominent US consumer organization called a manufacturer's general counsel. The organization, he said, had determined through testing that the manufacturer's flagship product was unreasonably dangerous in a test track maneuver of the organization's own invention. The organization planned to report on this finding in the September edition of its magazine and wondered if the manufacturer would care to comment. The general counsel said it would and that she would get back to the director to discuss logistics. She hung up the phone, then picked it up and called one of us.

We knew from past experience that the organization's maneuver was more of a trick than a test. We lined up experts to document the product and reconstruct what had happened. We hired an aerial photographer to overfly the test track and document tire marks. Working with the manufacturer's press office, we put together statements, B-roll, and press kits. We expected that they would hold a press conference on a Tuesday or Wednesday in the last week of August. August is a slow news time in the US and a good time for a media splash. Tuesdays and Wednesdays are choice days for press conferences because the nightly news will run the story that night or the next, and one can book book appearances on morning shows and new networks for several days.

We contacted a media friendly, who tipped us off when the press conference was announced to favored reporters. We dispatched teams to stand outside the organization's headquarters to distribute our press kits to reporters on the way in and on the way out. We announced our won press conference to begin within an hour of the organization's, and had the manufacturer's president in on studio, experts in another, and a satellite link for live Q&A and video feed.

The news picked up the story, but it was not the story the organization had planned. it was less about their "finding" and more about their bias and errors. What could have been devastating to the manufacturer's reputation became, from the sales and reputational perspective, a non-event.

Switcheroo

Sometimes, it pays to be flexible. One needs to know when to fold one's hand.

Our client was sued in Ireland. The case was difficult. It had substantial upside potential. We were brought in to advise. As is common, we were asked to select, advise, and oversee local counsel. We worked closely with the engineers to educate local counsel and prepare the case. We evaluated the facts, the jurisdiction, and the tribunal. The reserve was set accordingly. And off to court we went.

When we arrived, we got rather disturbing news. The regular judge, whose temperament and inclinations were of course factored into our reserve, had gotten sick. His replacement was erratic and plaintiff-friendly. He would deal from a different deck. The game had changed. We reacted quickly. We notified the company and the at-risk insurers. We all reassessed. We formed a new consensus plan. We engaged with opposing counsel and got the matter resolved successfully.

Without our presence and involvement, the company and its insurers, who were naturally distant from the action, would not have appreciated the change of balance and risk. They could not have read the cards as the hands were dealt. They would not have known to adapt.

Exposure

A manufacturer was sued in South Africa over a fatality. Plaintiff’s counsel filed a lengthy and unfocused complaint. He purported to back it up with an unconventional theory. His "expert" claimed to have had uncovered and proved a new phenomenon which, if true, would have had far reaching consequences over and above the value of the case. A widely-used component would have to be completely redesigned and retested.

The manufacturer engaged its go-to local counsel in the market. But their expertise was in dealer disputes and the like, not product liability. They were not fluent in the product, the engineering, or product liability defence.

Eventually realizing its dilemma, the company and its insurers, engaged us to lead the investigation and defense. We engaged proper experts. We identified the true root cause. We exposed the opposing expert as a charlatan and his theory as bunk. The trial ended in a defence verdict.

Rehab

GM's ignition switch recall, the Valukas report, and the fallout caused our client to wonder about its own processes of identifying, escalating, and addressing safety concerns. Could they unwittingly make similar mistakes? Were their processes sufficiently robust?

Rather than wait to find out, they engaged us to get answers. We borrowed a process engineer from the company. Together, we identified each of their core processes, unpacked them, analysed them, broke silos, removed doom loops, and cleared mines. We rebuilt what they had and built what they didn't have anew. So pleased with the results, the company shared them with regulators. They were pleased as well, and the new processes have become a gold standard for others to emulate. And the safety senses of all of the engineers and managers involved were enhanced, to the benefit of other work.