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Names like Vioxx, Baycol and fen-phen have replaced asbestos and tobacco as the hottest big-ticket products liability cases. And while the use of contract attorneys for document review is not a novel concept, the need for such assistance has increased along with the sophistication and scope of today’s major pharmaceutical products liability litigation. Dechert has recently had more than 100 contract attorneys working on a single pharmaceutical products liability matter, according to both firm sources and local legal recruiters. “When you have a situation where you have more than 100 contract attorneys, that’s like a midsized law firm and it needs to be managed professionally and those lawyers need to be treated professionally,” said Sean Wajert, chairman of Dechert’s mass tort and products liability practice group. “They don’t do traditional outside counsel work but it can be very beneficial for those lawyers and their careers as well as the firm and the client. You just need to have a dialogue with the client about when and how to use them. The client is very sophisticated and the stakes are enormous, so that’s incentive enough to come up with the right process.” Washington D.C.’s Legal Times, an ALM publication, has identified Dechert as representing Merck in the Vioxx work. The firm has also handled Baycol matters Wajert said there are several reasons for the high volume of contract attorneys — who are most often employed at the request of the client rather than the law firm. There is an enormous discovery burden that spans over thousands of cases in dozens of jurisdictions. Clients often feel it is more cost-efficient to pay for a contract attorney — who can make between $15 per hour to $35 per hour depending on experience level — than to pay the billing rate of an associate with a six-figure salary. And there is a tremendous amount of talent available to handle such matters rather than using highly-paid associates for such routine matters. Robert Nourian of Coleman Legal Search said even large firms such as Dechert and Pepper Hamilton are not staffed to handle the massive discovery burden of major products liability cases. Most people seeking such positions are looking for permanent employment but merely take the contract job to pay bills, Nourian said. “There are some people who are looking to get into [other professions] but the large majority are looking for full-time work,” Nourian said. “A lot of them were working in a practice area that just wasn’t for them and they left their job and are looking for work. “This is a great way to build your resume at a prestigious firm while searching for a job that is a better fit. “And if you can get $25 an hour, you can make more than your peers working full-time at small firms. You also have some people coming back to work after taking time off to raise kids and some of these projects allow for part-time work.” Abelson Legal Search’s Sandra Mannix said some individuals looking for contract work are just biding their time while they search for a job in another profession. “You are talking about very talented lawyers who just have something else going on in their lives,” Mannix said. “I’ve dealt with actors, playwrights and musicians as well as people with family concerns. And we see just as many men as women.” APPETITE FOR CONTRACT LAWYERS Recruiters said while a number of firms are looking for contract attorneys, Dechert and Pepper Hamilton have the biggest appetite. Dechert has represented Phillip Morris in tobacco litigation and now lists Merck as a client. Pepper Hamilton has a health effects litigation group led by rainmaking partner Nina Gussack that has expanded greatly in recent years via the use of contract attorneys. That group represents defendants in medical device cases as well as matters involving products such as Baycol. Gussack and other Pepper Hamilton officials did not respond to requests for interviews on this subject. “The staffing needs are pretty ferocious for both contract attorneys and paralegals,” Mannix said. Morgan Lewis & Bockius also uses contract attorneys but has a different process. Managing partner for operations Thomas Sharbaugh said the firm has a regular group of roughly 60 attorneys on call when the firm needs assistance with document review — usually in major products liability and employment discrimination cases. Sharbaugh said the contract attorneys are used as needed and usually get paid between half and two-thirds what it would cost a client for the services of a full-time Morgan Lewis associate. “We like to keep going back to these people because we’ve already trained them and we feel comfortable with them,” Sharbaugh said. “The client will often initiate the idea of using contract attorneys because they don’t want expensive associates doing discovery work. When they tell us that they have an agency in mind, we tell them that we have our own people already trained for relatively the same price.” Sharbaugh said Morgan Lewis bills the client more for their own contract attorneys than ones used by agencies. But the pitch to clients is that they are getting more experienced lawyers for the additional price. He said the contract attorneys work in space in an adjacent building to its headquarters and are supervised by Morgan Lewis partners and associates. In major cases, he said contract attorneys often garner steady work while still maintaining flexible hours. “This is not time-sensitive work they are doing so if someone has to leave every day at a certain time to pick up their children, that’s fine,” Sharbaugh said. Nourian said while the bulk of the work is document review, some contract attorneys that prove themselves can be assigned to handle research and writing as well as deposition preparation. But he said it is rare that a contract attorney can parlay such work into a full-time job. Cherry Hill, Pa.-based legal consultant Joel Rose said while the numbers might be higher at large firms, midsize and small firms also employ contract attorneys. Plaintiffs firms in the same pharmaceutical cases employ contract attorneys for document review. John Kerns, marketing director at Berger & Montague — Philadelphia’s largest class action boutique — said the firm has brought in a few contract attorneys to work on major cases in recent years but does not make a habit of it. YEARS OF WORK Though Wajert said there are no promises of duration of employment upon being hired, he did say a major pharmaceutical products case can often result in a few years of continuous work. “You see a wide range of people,” Wajert said. “Many of them are young lawyers who are looking to build their resumes by working for a big firm on a big matter. And you also have some very talented attorneys who are making a lifestyle choice. Working at a large firm doesn’t often lead to normal hours. But working as a contract attorney can allow you to come in a 9 a.m. and leave at 5 p.m. You can’t do that if you are an associate or partner at a law firm. Things are just too unpredictable for that to be a reality.” In a time when law firms are trying to use office space more efficiently, even a giant like Dechert cannot clear enough room to house 100 contract attorneys in its home base. So Wajert said either the client or the recruiting agency that provides the contract attorneys will rent space in town. He said Dechert lawyers make frequent trips to those locations to help supervise the work. “It can be tough because while they are not employees of the firm, we supervise the contract attorneys,” Wajert said. “You have to develop a system because your regular attorneys should be making decisions and not the contract attorneys.” Not every firm handles major pharmaceutical work with the use of contract attorneys. Reed Smith partner Michael Scott, who leads a team of lawyers representing Wyeth in fen-phen diet drug cases, said his firm tends to rely on its own associates. “I can understand why a client might want a firm to do it,” said Scott, whose 75-attorney group has also done work for Eli Lilly and Co., Medtronic Inc. and Pfizer Inc. “It can be cheaper and there are certain cases that lend [themselves] to using contract attorneys. But from my experience, we spend a lot of time recruiting the best associates available. So when we get important work, I would think you’d want them doing it.” Wajert said Dechert would prefer not tying up its associates — whose starting salary is $125,000 — with document review. “I don’t think associates spending a great deal of time working on document review is good for morale,” Wajert said. “And it’s not like we don’t have other things for them to do.” While the need for contract attorneys ebbs and flows, legal recruiters said as long as Philadelphia firms remain at the center of such sophisticated national litigation, the market will not dry up any time soon. “We’re very lucky that the Philadelphia region has such good law firms handling this kind of work,” Nourian said. “It certainly keeps us busy.”

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