We professional services vendors who got through the 2001 global recession found out one thing: Businesses wanted solutions, not PowerPoint Presentations on our pedigree, our client list, or our brilliant and unique methodologies.
That was part one of the brutal learning curve. Part two was that the solutions had to benefit the whole business, not just the department in trouble. No, we couldn't save Happy Tea if that cheapened the business' premium branding or left no budget for promoting Rainy-Day Gum.
Those lessons are articulated for legal services in Jones Day's current edition of PRACTICE PERSPECTIVES: Product Liability & Tort Litigation. In fact, that issue is themed: "Business-Focused Solutions."
The Letter from the Practice Chair, authored by Mickey Pohl of the Pittsburgh office, captures the key points of how to operate a law firm in the 21st century. During this economic downturn, these new guidelines might be taken to heart by those in BigLaw who are still viewing work as isolated legal puzzles, not as just a piece of what could impact the whole business - or even an entire industry.
In the second paragraph of his letter, Pohl lets it rip:
"Our clients usually do not need pointy-headed lawyers who see a litigation matter as a science project. Rather, they want strategies and solutions that are consistent with or do not disrupt the company's business plan. ... A victory that craters relationships with customers and consumers is probably not much of a victory. At the other end of the spectrum, a case plan that winds up in a quick, inexpensive settlement but causes an avalanche of new cases was probably not a great result."
This could be paraphrased: The client won the case but lost billions in brand equity. As we lead-paint watchers realize, it was a mashup of many variables which figured into the decision for the former lead-paint companies to fight, not settle.
To make this systems approach an operational reality, Jones Day's Product Liability Practice has created its Product Response Team [You can read about it here]. That legal SWAT team is multi-disciplinary and global. That lets organizations in a crisis, such as a possible recall or ethics scandal, understand all the possible and probable business implications of the various legal strategies.
After deconstructing Pohl's letter, this came to mind: What if the U.S. meat industry, via its trade associations and/or companies, had called in the Product Response Team a few years ago? That was when E-Coli re-emerged as a health, economic, and public relations risk. But it didn't. The rest is the current mess.
That same sort of problem has evolved in what is called the "Raw-Milk Movement" [See HARPER'S, April 2008]. So much of the solution involves law but the approach has to take into consideration myriad other factors, be they community values, how dairy cows are maintained, and unbiased scientific research.
In this issue of PRACTICE PERSPECTIVES, there are hands-on discussions of complex situations which require for lawyers to parachute in a businessman's version of Solomon. Those articles, some of which I will touch on in future posts and most of which you can find online, include:
- "The U.S. Consumer Product Safety Commission: What You Need to Know Today - and Tomorrow
- "Exposure Assessment in Personal Industry Litigation: Challenging the Data"
- "Sometimes a Good Defense Is the Best Offense: A Summary of Certain Useful Product Liability Affirmative Defenses"
- "Evidence Matters: Other Injuries, Accidents, and Complaints in Product Liability Litigation"
- "Expert Discovery: Does a Testifying Expert's Consideration of Attorney Work Product Vitiate the Attorney Work-Product Privilege"
- "The Appeal Bond - What It Is, How It Works, and Why It Needs to Be Factored into Your Litigation Strategy."
In future editions of PRACTICE PERSPECTIVES, I hope to be reading some articles about international legal issues such as "suing" China or alleged personal injury which occurred outside the U.S. being litigated in U.S. Courts.
Readers whose publications also advocate a systems approach are invited to send them for discussion to Mgenova981@aol.com.