Dive Brief:
- As lawsuits become more common for food and beverage manufacturers, outside counsel hired before a lawsuit to put in place preventative measures could be the answer to saving money on litigation costs, litigators from Herrick, Feinstein LLP wrote in Food Manufacturing.
- Active coordination with counsel is key, including the appointment of an entrusted attorney from an outside firm as the leader and executor of the company's crisis management plan. This attorney and his or her team can estimate potential costs, such as trial and settlement values, and the likelihood of success.
- Even with outside counsel, a manufacturer must take responsibility during litigation by reviewing its counsel's billing statements to spot inefficiencies, inappropriate use of staffing, or non-itemized charges. Also, it's key for company executives to ensure that legal decisions remain business decisions first and foremost, such as choosing whether to settle a claim or go to trial.
Dive Insight:
With or without outside legal counsel, preparation is key to saving time, money, and effort during litigation. Companies should have a detailed plan going into the discovery phase, which can became laborious and costly in the age of email communication.
Emails are so commonly used for corporate communication that they often appear as evidence in trial. A recent example was Stewart Parnell's "Just ship it" email response when employees informed him that lab tests showed positive results for salmonella in PCA peanut butter. But that also means the discovery and review of potentially thousands or tens of thousands of documents — and costs add up fast.
Plans are also critical for any motion practice, because losing certain motions can be misinterpreted as saying the company's products are unsafe or its actions are fraudulent. Early motions are expected in the early days of litigation. They are not always the most strategic business decisions, in terms of both costs and reputation, especially if a favorable result to the motion is not seen as likely.
Also key for manufacturers is always being aware of all options, whether that comes from the advice of internal or outside counsel. For example, a company may choose to pursue alternative dispute resolution through arbitration or mediation versus a traditional settlement.