The Evolution of Litigation Management: Establishing a Legal PPO
February 2004
In response to rising lawsuits, litigation
costs, and punitive damage awards, everyone is busy pointing fingers. The focus
should not be on who's to blame but instead on finding a solution through partnership.
by Michael R. Boutot
International
Litigation Management Association (ILMA)
Having spent nearly 20 years in the property and casualty insurance industry
directly involved in claims and litigation, I find it interesting to hear people
talk about litigation management. Unfortunately, as I listen to discussions
relative to this subject, I have grown more and more concerned with the fact
that what folks are calling "litigation management" is not what it really is
(or at least not what it is supposed to be).
As we have often heard folks say when trying to understand an issue, "Let"s
get back to the basics." I want to propose that we likewise do the same as relates
to this subject of litigation management. To do just that, let"s start with
some basic, simple dictionary definitions. The word litigation comes from the Latin word litigatus, the past participle of litigare. Lit or lis means "lawsuit," while agere means, "to
drive." Thus, in its simplest form, the word means "to drive a lawsuit."
For the word "litigation," the dictionary points you to the word "litigate,"
which is defined as follows:
- to carry on a legal contest by judicial process;
- a dispute; and
- to contest in law.
Thus, litigation in its purest form includes within it the idea of undergoing
a legal contest or challenge.
What about the word management and its meaning?
This word has its root in Italian in the word maneggiare,
which comes from the word mano, meaning
"hand" (as in "to handle an object with your hand"). The word "management" is
defined in the dictionary as follows:
- the act or art of managing: the conducting or supervising of something
(as a business);
- judicious use of means to accomplish an end; and
- the collective body of those who manage or direct an enterprise.
"Manage" in the dictionary is further defined by:
- to handle or direct with a degree of skill;
- to make and keep compliant;
- to achieve one's purpose;
- to treat with care; and
- to succeed in accomplishing.
Now, here is where we begin to put the axe to the grind. If we look at each
of these definitions, we must come to the conclusion that a combined definition
of the words litigation management must at
least in part mean something like:
The act of handling and/or directing of a collective body, with care,
the process of a legal dispute with the intent of ensuring compliance to
achieve one's purpose.
Or, how about this:
A collective body's judicious use of means to carefully and skillfully
handle and direct a legal dispute thereby accomplishing one's intended result.
I would venture to say that there are few that would argue with the selection
of these words to assist in defining what litigation management at least is
suppose to be. Yet, in a recent survey conducted, when asked what litigation
management was, over 90 percent of the responses had language in their definition
which had something to do with cost control. Here is my question: where in my
proposed definition (based on the dictionary definitions of litigation and management)
do we read anything about money?
Now Is the Time!
The time for the establishment of what many might call a Legal Preferred
Provider Organization (PPO); the formation of a group of professional legal
service providers whose intent is to do the best job possible to provide an
accurate, thorough, and efficient defense of civil litigated cases. This Legal
PPO (future name to be provided) will be "A collective body established to allow
for the judicious use of means to carefully and skillfully handle and direct
a legal dispute with the intent of accomplishing the intended result of their
clients."
This Legal PPO will consist of a minimum of the following legal professions.
- Defense Attorneys
- Court Reporters
- Expert Witnesses
- Consultants
- Record Copy Services
- Investigators
- Alternative Dispute Resolution (ADR) Providers
- Case Management Workers
- Practice Management Workers
- Litigation Technology Specialists
- Video Conferencing Producers
- Structured Settlement Providers
- Legal Research Experts
- Jury Research Experts
- Verdict Research Experts
Now Is the Time!
We all have heard the saying: "What goes up must come down!" I am here to
suggest that what is going up has no intention of coming down. The industry
is at a critical stage to turn the corner. Lawsuits are on the rise, litigation
costs are escalating, and punitive damage rewards are becoming outrageous. All
the while, everyone is too busy pointing fingers.
The insurance industry is busy blaming defense attorneys for rising costs
due to improper billing practices. Defense attorneys are likewise busy pointing
their fingers back at the industry screaming "foul" and suggesting they are
being handcuffed with guidelines, policies, and procedures. Service providers
are refusing to work for both sides because they frankly are not getting paid.
When and if they do get paid, it is 90 days or more late. Meanwhile, the plaintiff's
bar sits back and collects on their efforts.
Now Is the Time!
What do we need to do? We need to join forces!
This concept of a Legal PPO is not another idea to "handcuff" anybody, nor is
it a newfangled idea on how to control litigation costs. The solution I believe
is partnership.
Some years ago I had the pleasure of meeting Peter Jenkins, founder and president
of an organization called LawPartnering
Inc. Each year Mr. Jenkins is instrumental in the creation of the LawPartnering
Forum. In short, several major defense firms, insurance companies, and corporations
come together to seek opportunities to improve on partnerships.
In addition to this organization, I have also seen organizations like the Defense Research Institute and the Federation of Defense & Corporate Counsel that likewise seek opportunities
to get parties together to come to agreeable terms as relates to improving the
status of tort litigation and tort reform in our great country.
Now Is the Time!
I believe it is time for a concentrated effort to take place to establish
a united front with the focus being improved relations and improved results.
If done correctly, this could give new meaning to what a Legal PPO is all about.
The concept should not be focused on pointing fingers, but finding solutions.
The best way we will see that happen is to establish a "movement" the strikes
at the core of this industry … positively affecting the bottom line dollar.
But let's remember, that means everyone's bottom line.
In the articles which follow, we will focus on how such a concept can take
root. Meanwhile, for those who truly have a vested interest, drop me a line
at Michael@LitigationManagement.org to discuss what role you and your organization might have.
Until then … let's remember … Now is the time!
The views, content, and opinions expressed herein are solely
those of Michael Boutot and are not necessarily those, nor intended to be those
of the Board of Directors and/or membership of the International Litigation
Management Association (ILMA).
Opinions expressed in Expert Commentary articles are those of the author and are
not necessarily held by the author’s employer or IRMI. This article does not purport
to provide legal, accounting, or other professional advice or opinion. If such advice
is needed, consult with your attorney, accountant, or other qualified adviser.