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Joint Defense Groups: The Good, the Bad and the Ugly

Ken Lopez
By: Ken Lopez

Litigation Management, Litigation Support, Leadership, Opening

Quite frequently, defendants in major cases will decide to form joint defense groups. Joint defense groups are intended to provide defendants with significant efficiencies that result from common effort in facing a common adversary, whether in a patent case against the same patent holder, tort litigation against the same set of injured people, white-collar criminal actions against the government, antitrust litigation against the same plaintiff, and so on.

But joint defense groups, which by their nature bring together several high-powered lawyers at a single defense table in the courtroom, can present unique challenges. Sometimes, joint defense groups will work as planned and the defendants will reap the benefits of their cooperation, and sometimes they will break down.

Here are some best practices for joint defense groups to follow at trial that will help them succeed rather than fall apart in the heat of trial.

  1. Clear Leadership. The group should pick a clear leader. Studies of organizational behavior and dynamics show that for “pop-up businesses” with limited durations and specific tasks to accomplish, like movie production crews or trial teams, success is associated with the early selection of a team leader. Many trial teams may be afraid to antagonize a lead attorney for one of the parties who is not chosen and may thus hesitate to make a choice, but it is best to pick a leader and move forward that way.

  1. Just Enough Consultants. The group should pick one consulting firm for each trial-related task – for example, one consultant to handle all graphics and litigation consulting. The “too many cooks” phenomenon is definitely present if the group decides to select multiple vendors for key consulting roles in the trial. The attorneys should be focusing on their case, not on resolving disputes between vendors.

  1. Unified Opening. It’s best not to present multiple opening statements – one for each defendant company. This will often result in a confused message that befuddles the jury. As we have said before in this blog, a trial can be won or lost when the jury immediately forges a personal identification with a lawyer giving the opening statement or fails to connect with that lawyer. Multiple opening statements can only blur the message and reduce the possibility of forming an emotional connection.

  1. Clear External Communications. Just as the trial team for the joint defense group should speak with a single voice inside the courtroom, it should also speak with a single voice outside the courtroom. That especially applies to statements to the media. The joint defense group should not be giving out conflicting messages.

  1. Best is Best. The group should pick the best available people for each job. There may be many individuals, some of them lawyers and some of them in other key roles, to choose from, and it’s important to tailor the task to each person’s strengths. For example, in a merger case it’s often assumed that the group from the acquiring company’s law firm will call the shots, but lawyers from the acquired company’s law firm may also have great strengths, and they should not be ignored.

Other free A2L articles focused on litigation management, effective use of litigation support, and trial team leadership include:

litigation leadership 4th edition

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