This will be the first in a series of posts looking at litigating, managing, trying and resolving Complex Litigation in today’s viral environment. Over the course of the coming weeks and months we will focus on this topic and offer insight into this ever growing area of litigation. After all, almost no lawyer will tell you they work on simple litigation, the unimportant stuff.
There is no bright line definition of Complex Litigation. It falls into numerous practice areas and surely involves a wide range of governing statutes and regulations. Often, it is high-stakes or “bet the company” litigation, and it generally involves multiple, well-funded parties with the intellectual resources and background necessary to litigate across many fronts – class actions and mass actions, civil and criminal, state and federal, individual and MDL. The field of Complex Litigation is, by definition, complex, and the backgrounds of the attorneys who practice in this field are as varied as the field itself.
Because the issues being litigated are so complex, the proliferation of information, technology and communication available today has vastly expanded the scope of litigation and the opportunities afforded to attorneys who can embrace these rapidly developing areas. With today’s rapidly evolving twenty-four hour news cycle, wherein the public gets its news not just from the morning newspaper and the evening news, but via social media and via twenty-four-hour cable news channels, litigation counsel often sits at the center of a swirling public relations campaign centered on “trying” the case in the court of public opinion. Issues can go viral immediately today and such a reaction can significantly impact not only a company’s litigation profile, but its overall viability as a going concern.
A quick review of recent headline news issues – including various automobile failures, plane crashes, product defects, securities related issues and consumer advertising failures – highlights the exposure and risk today’s companies must juggle when it comes to the viral news cycle that has helped turn what were once local and internal issues into massive and complex liability risks on a national scale. An attorney’s ability to either keep the case in the news or move the case off of the front page may mean the difference in his or her client’s long-term ability to sustain the first phase of complex litigation – trial by press – and move onto really litigating the facts.
In the coming weeks and months we look at some of the prominent areas of Complex Litigation as well preparing for the litigation, assembling the team, taking a strategic approach (both with respect to litigation alternatives as well as through the use of alternate fee structures), collecting information and developing experts and preparing for and trying the case.