I recently was elected as a new member of the Federation of Defense and Corporate Counsel (FDCC) and last week I attended my first annual meeting of that organization.  One of the presentations was by two former senior military officers from Afterburner, a consulting company that teaches businesses and professionals how they can potentially use insights from the military to improve how they do business.  Here are a few things I gleaned from the Afterburner presentation that could be helpful in defending class actions and other complex litigation:

  • Clearly Define Your Mission:  Often in litigation the end game is not clearly defined.  Defense counsel and the client simply go through the motions of responding to the complaint, responding to discovery, etc., without defining what the real goal is, such as settling the case for under X dollars, or obtaining a favorable ruling on summary judgment without spending more than Y dollars on attorneys’ fees, or taking the case to trial and obtaining a defense verdict.  Of course, sometimes it’s hard to determine what the end game is early in the case, and the mission can evolve or change, but there are plenty of cases where it should be possible to develop a  more specific mission early on.  The team of lawyers and paralegals (both outside and in-house) may benefit from a more clearly-defined mission established as early as reasonably possible.  The team can then develop a plan to achieve the specific goal(s) and plan for how to deal with contingencies that could derail the plan or prevent achieving the goal(s).
  • Think Thoroughly About the Potential Opposition Positions and Court’s Approaches:  In military terminology this is identifying the “threats” to your “mission.”  Set aside time to think thoroughly about what positions the other side might take and how you would respond to them.  Include all team members in identifying the potential positions the opposition might take.  This is typically done in litigation, but not always in a systematic way, and not always early on, or as a team.  As a military analogy, think about the planning that must have gone into the raid on Osama Bin Laden’s compound.  By thoroughly identifying and planning for all sorts of contingencies before the operation, every member of the team probably knew what to do if faced with making a difficult split-second decision.  This type of approach is also important in preparing for what questions the court may have or how the court might look at an issue differently.  One thing I find helpful in preparing for an important oral argument is setting aside time to read through the briefs again as if I were the judge, write out a list of all the difficult questions I can think of, and then write out proposed answers or bullet points that would form the basis of answers.  I then typically run this document by others on the team and also sometimes run it by a lawyer who knows nothing about the case, asking them to identify both new questions that I have not come up with and weaknesses in proposed answers.  It feels good (and impresses your client) when nearly every question you get from the court is one you have anticipated and prepared for, or a slight variation thereof. 
  • “Red Team” Your Proposed Strategy:  When you have come up with a proposed strategy for the case or a portion thereof, present it to a few lawyers (outside and/or in-house counsel) who are not involved in your case.  Encourage them to identify issues or potential strategies that might not have been considered.  It is important that this be done in a “nameless” and “rankless” manner so that no one feels hesitant about criticizing an idea or strategy that may have been developed by their “boss” or someone more senior in the law firm or company, or by the client.  This is sometimes done in litigation (such as when you do a moot court for an important argument), but often not in any systematic or regular way.  The senior lawyer on the team needs to establish upfront the “nameless” and “rankless” setting in order for this to work well. 
  • Use Debriefing:   After significant events in the course of litigation (such as an important deposition, oral argument, court decision, mediation, etc.), schedule time for a brief meeting with the litigation team to discuss what came up that was unanticipated but might have been anticipated, what could have been done better, and lessons learned for the future of the case or for future cases.  Again, it is important that this be done in a “nameless” and “rankless” format.  Junior lawyers should not hold back in expressing their thoughts for fear that they will offend a senior lawyer, and the lawyer who took the lead should try to be critical of his or her own work.  The client should be involved in this as well and freely express his or her thoughts.  The idea here is that while we all try to achieve perfection, no piece of work is perfect and only by doing this kind of debriefing can we get as close to possible to perfection.  The military analogy that Afterburner gave for this was that the Blue Angels do this kind of debriefing after every show they put on, despite the fact that they have done thousands of them and to the ordinary observer every show looks near-perfect.
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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.