Keys to a Successful Joint Defense Group

By on March 26, 2019

Executive Summary of an article written by
Terrence J. Dee, McDermott Will & Emery

A joint in-house counsel defense group can maximize effectiveness and position the defense for the best possible outcome in litigation. The initial challenge for a joint defense group (JDG) is that membership is often effectively involuntary. Plaintiffs’ lawyers decide who the co-defendants are. Members are often arch-rival competitors or groups with distinctly different interests. Insurers add another layer of complexity.

Establish a relationship and line of communication with your fellow JDG members. Disagreements are inevitable. Ideally, outside counsel would resolve most issues, but in-house counsel will be recruited to help; and negotiating will be easier if you have already developed a working relationship. Organizing the right leadership team quickly is key to its long-term success. Joint defense efforts are often chaotic at the beginning as parties jockey for prominent roles, race for the best local counsel and scramble to create the first meeting agenda, circulate competing drafts of initial motions, and even set up the conference call and email distribution lists — all to gain leverage for control of the group. These efforts, if not managed, can cause ill-will, distrust, and ultimately lead to a dysfunctional group.

In-house counsel play a critical and unique role in creating a high-functioning JDG. More engagement early on to set the structure and establish working relationships with other in-house counsel, followed by more selective involvement once a healthy group is established, will lead to successful results for the defense group and your client.

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