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With the onslaught of corporate multijurisdictional, multiparty litigation, in-house attorneys say they are placing a premium on team players who can band together with other defense attorneys to help curb legal bills and put big cases behind them. The ongoing escalation in mass litigation has created the need for corporate clients to pick and choose top talent across the country to build big “virtual firms,” said Pfizer Inc.’s senior assistant general counsel, Allen Waxman. He spends much of his time putting together defense teams for Pfizer to handle the company’s litigation demands. He searches for attorneys who can get along with fellow defense counsel representing Pfizer. He also looks for attorneys who can work well with counsel representing other co-defendants in a case. “You can tell pretty quickly who the prima donnas are and who shares,” Waxman said. Cooperation of this ilk comes into play two ways: On one hand, it means making nice with attorneys representing other co-defendants in a case. For example, a manufacturer will look for attorneys who can get along with lawyers representing the supplier and the retailer in a products liability case. A lack of cooperation in those cases can result in attorneys blaming each other and running up legal bills in the process. It can also risk a higher settlement or verdict against defendants whose finger-pointing and divided arguments turn off jurors. On the other hand, general counsel also want attorneys who demonstrate the ability to work well with attorneys in national firms and those in local or regional firms, all of whom represent the same client in matters that span several jurisdictions. Attorneys who function effectively in these situations can divide the workload, work within a chain of command and leave certain tasks to those attorneys with particular talents for handling them. DOWN TO MONEY General counsel are finding that cooperation in both types of situations can save them money, a growing concern among in-house attorneys. In a survey conducted last year by the Association of Corporate Counsel and Altman Weil, 59 percent of 167 chief legal officers responding to the survey said the No. 1 reason for terminating a law firm was a lack of responsiveness. The second reason was cost management. “General counsel want someone who is not a jerk, somebody who plays well in the sandbox,” said Candace Beinecke, managing partner of Hughes Hubbard & Reed in New York. The 330-attorney firm is national counsel for Merck & Co. in the Vioxx litigation. Cooperation among defense counsel means a willingness of attorneys to shed their egos, Beinecke said. And though some attorneys may say they are adept at doing so, not every lawyer is well suited for the task. “It takes a certain level of security,” she said. “They have to put aside their own concerns and think of the clients and the big picture.” But figuring out who has that combination of talent and cooperative spirit is not easy. Reputation and track records help. Part of Waxman’s selection process in forming his virtual firms, he said, is asking potential outside counsel what other law firms it would recommend on the case. “If the response comes back, ‘There’s nobody like us,’ it tells you something,” he said. Demonstrating that a firm’s own lawyers work well with each other is the first step in convincing general counsel, Beinecke said. If egos clash at that level, they are bound to do so when other firms get involved. But it isn’t just big heads that can thwart cooperation. A resistance to working together often comes from attorneys who want to “churn and overbill a file,” said Lori Iwan, a partner with Iwan Cray Huber Horstman & VanAusdal. The 15-lawyer litigation firm in Chicago serves as national and local counsel for clients such as General Electric Co. and ServiceMaster Co. Rather than having one or two lawyers on a defense team handle a routine deposition or filing, some firms will try to inject additional attorneys into the task to bulk up their billables, she said. In other cases, they will duplicate work already performed by counsel for co-defendants, when a little organization could have saved thousands. She added that cases that have dragged on, and those in which the attorneys are inexperienced, tend to have less cooperation. MULTIDEFENDANT PITFALLS But the biggest disasters from a lack of cooperation apparently occur in multidefendant cases. Getting along with counsel in those situations is more difficult because interests can diverge. An attorney’s foremost duty is to the individual client, as opposed to cases where attorneys from several different firms are looking after the same client. Still, attorneys can share the work of routine pretrial matters and more if they proceed with a common line of defense. A joint defense agreement is one way for defense attorneys to work together. In general, these agreements extend the attorney-client privilege by protecting the confidentiality of communication passing from one defendant to the attorney of another defendant. In some cases, they enable defendants to bolster their arguments and can help spread the work among the parties. But they are not without their problems, Iwan cautions. They can compromise a defendant’s ability to enter a settlement, which can run counter to public policy, some courts have found. Conflicts of interest may also arise, which can result in all of the attorneys being disqualified from the case. In addition, some agreements include waivers of conflicts of interest, which may violate ethics rules. Even with these agreements, Iwan said that counsel often make the mistake of resorting to infighting in multidefendant cases instead of presenting a united front that could benefit all defendants in the long run. “It takes all the resources the plaintiff doesn’t have and helps the plaintiffs prove their case,” she said. Presenting a unified argument is not a new concept, she noted. But mass tort cases have shed light on what can happen when it fails. BIG LESSON FROM BIG TOBACCO A big lesson in dividing and conquering came with the tobacco litigation in the 1990s, Iwan said. When Liggett Group, a tobacco company represented by New York’s Kasowitz, Benson, Torres & Friedman, decided to break ranks with the other big tobacco defendants and settle with plaintiffs and state officials, it saved that company millions but, as many surmised, led to the unraveling of the tobacco industry’s defense. When to buddy up and when to go it alone are not easy decisions, however. Former Circuit City Stores Inc. General Counsel W. Stephen Cannon, who last month left the electronics retailer to form plaintiffs’ firm Constantine & Cannon, said that depending on “how many marbles were on the table” in a case, he would look for outside counsel that showed it could cooperate with co-counsel when handling depositions and other pretrial matters. The more “marbles,” he added, the less he was inclined to share the load with co-counsel. The inability of attorneys to work together can have disastrous effects in multidefendant litigation should a case go to trial, Iwan said. “You now have one party working hard to point a finger at another client, and nobody’s pointing at the plaintiff,” she said. Plaintiffs’ attorney John O’Quinn of Houston, who won a $1 billion verdict last year in a fen-phen case, has seen the result of defendant infighting. In general, he said, feuding defendants bolster a plaintiff’s case. Opposing counsel who have “awful big egos,” he said, are not as successful in defending their clients as attorneys working for “peace and harmony.” However, he added that disagreements, whether they are among attorneys representing separate defendants or those working for the same client, can lead to a healthy banter, if they will listen to each other.

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