War College Curriculum for Defense Counsel, LJN’s Product Liability Law & Strategy

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curriculum-for-defense-counsel/
PRODUCT LIABILITY LAW & STRATEGY
MAY 2014
War College Curriculum for Defense Counsel
By Ronald J. Levine, Leah Kelman
It is a rare product liability defendant who believes that the plaintiff has a meritorious claim. In
truth, defectively designed products have been sold, and inadequate product warnings have been
given. That said, cases that an objective observer would describe as frivolous are filed regularly. If
your company or client is the target of such a claim, there is a growing body of law that offers
effective offensive strategies.
When weighing and evaluating those strategies, defense counsel should put on their (real)
“General” hats, and view the terrain from the military perspective. The client is under attack. What
strategies could be employed? Law school curricula do not offer a course on product liability
counter-attacks against meritless and bogus litigation. If law schools did consider such a specialty
program, they should take a page from War Colleges.
In the military world, war colleges were established because experience on the battlefield
demonstrated that senior officers were not proficient in planning and executing large-scale
military operations. In the product liability field, clients have complained that plaintiffs’ attorneys
are much more skilled at planning litigation attacks. A war college for defense counsel would
certainly help develop defense counsel as “grand strategists” in litigation battles, especially when
challenged by bogus claims. The following are some of the courses that could be taught at the
“Law-War School” for defense “Generals” who are planning a counter-attack.
Counter-Espionage 201
This course involves an exploration, from a theoretical and multi-disciplinary perspective, of the
latest information-gathering techniques, taking into account social media, computer forensics,
and industrial investigations. The goal is to develop a familiarity with ferreting out fake or
overstated claims.

2. Course reading will include study of defendants who have overcome frivolous claims through the
use of in-store surveillance video, facebook postings, and investigation of defendant’s own
consumer services database. In one instance, a defendant consumer products company defeated
a consumer fraud labeling class action when it discovered that the named plaintiff had in fact
complained about personal injury caused by the same product to the company’s customer service
department, making plaintiff an inappropriate class representative.
This course will be limited to 25 defense counsel who have a healthy skepticism of claims made by
adversaries. Bring your hidden cameras.
Advanced Propaganda 402
Advanced Propaganda will be a joint offering by the Law and Marketing War Schools to consider
how to use all forms of media to counter-attack against frivolous litigation. Case studies of a few
enterprising companies that have successfully deployed propaganda campaigns to bring down
frivolous claims will be considered.
Special attention will be given to a prominent food chain, which faced a class action lawsuit
alleging that its “beef” tacos and burritos did not meet federal requirements to be labeled as beef.
The company countered with an aggressive advertising campaign, placing full-page ads in major
newspapers that read: “Thank you for suing us. Here’s the truth about our seasoned beef,”
followed by an open letter refuting the allegations. The defendant also aired television spots and
launched a YouTube campaign to proclaim its taco filling is 88% beef.
Extra credit will be given to defense counsel who can successfully design a multi-media campaign
with the goal of exposing frivolous claims against a client company, and avoid heavy litigation
costs.
Drone Strikes 310
This course is designed to survey the consequences of failed reconnaissance and surveillance by
the plaintiff, the result of which may include pre-programmed detonation of plaintiff’s case, with
costly ramifications for counsel and claimant. This module will focus on F.R.C.P. Rule 11 sanctions,
which remain the most common form of sanction.
Lectures will cover application of Rule 11, counsel’s affirmative duty to conduct a reasonable
investigation into the facts of a claim both prior to filing suit and thereafter to ensure that the
assertions contained in each paper submission are made with a reasonable belief that they are
well-grounded in fact. “Shot in the dark” litigation may warrant sanctions against counsel
individually, against the firm, and against the claimant.
The course will discover that the U.S. Supreme Court has recognized the validity of judicially
ordered curbs on abusive litigation. All sorts of curbs on frivolous litigation have been imposed on
litigants and their attorneys. The course will explore these actions ‘ with the only limit on the
court’s power being that a litigant cannot be completely foreclosed from access to the courts.

3. This course requires 30 hours of field work investigating the merits of potential claims. Point
deductions are issued against plaintiff’s counsel if investigation uncovers that plaintiff bought the
product “for the case.”
Intermediate Court Martial 380
This seminar will examine theories and implementation of penal options. Participants will
critically analyze the principles and effectiveness of various forms of punishment, from monetary
sanctions to stripping titles and honors.
Counsel will investigate the theory and application of monetary sanctions, codified at 28 U.S.C. ‘
1927. Section 1927 provides that “[a]ny attorney ‘ who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy personally the excess costs,
expenses, and attorneys’ fees reasonably incurred because of such conduct.” Conditions
warranting monetary sanction include willful bad faith on the part of the offending attorney for
initiating proceedings with malicious and harassing intent. One example includes a monetary
penalty levied on counsel for failing to conduct pre-filing investigation and continuing to pursue
baseless claims after discovery revealed that defendants were not proper parties to the action.
In addition, this course will consider a tactical resistance to class counsel. In some cases,
misconduct by class counsel, such as improper solicitation of the plaintiffs, or other ethics
violations, is grounds for denial of class certification. In a class action, the court has a unique
obligation to protect the interests of absent class members. This course will explore utilizing this
unusual feature of class actions to the advantage of a defendant under attack.
Grades will be scored on a Pass/Fail basis. Counsel must demonstrate the ability to render the
appropriate penalty in hypotheticals presenting complex ethical and practice issues to pass this
course.
Counter-Attacks on the Battleground 350
This course is an introduction to counter-offensive civil causes of action. It provides an in-depth
study of malicious prosecution and abuse of process claims advanced by defendants facing
unfounded and groundless suits.
This class will also consider abuse of process, which involves litigation filed or pursued for a
collateral purpose, unrelated to the merits of the claims. To prevail on a claim for abuse of
process, a claimant must demonstrate that the plaintiff was motivated by an ulterior purpose in
bringing legal proceedings and that the proceedings resulted in a perversion of the judicial
process and the achievement of an end not contemplated in the regular prosecution of the charge.
For example, litigating to obtain a competitive advantage, which is not tied to success on the
merits, is an abuse of process.
Barriers to a counter-strike sounding in fraud, negligent misrepresentations, and conspiracy to
commit fraud will also be examined. Because a defendant typically cannot establish reasonable
reliance on a sham litigation that it has vigorously defended from the outset, malicious
prosecution and abuse of process are more appropriate responses.

4. All defense counsel will complete a mock litigation project that will investigate the hurdles
associated with these counter-offensive strategies, including judicial reluctance to find malicious
prosecution and abuse of process for fear that strict enforcement would stymie legitimate claims.
The Nuclear Option 500
A recent addition to the core curriculum, this workshop will offer defense counsel advanced
instruction in use of a federal Racketeer Influenced and Corrupt Organizations Act (RICO) as a
potent counter-strike against a sham suit. Civil RICO has been described by the courts as “an
unusually potent weapon ‘ the litigation equivalent of a thermonuclear device.” This “nuclear
option” will investigate how a statute designed to combat organized crime is now being employed
by defendants to respond to fraud by plaintiffs’ attorneys in our courts. RICO is especially potent
given its provision for treble damages, which courts have enforced when finding fraud committed
by counsel.
Prerequisites for enrollment in this course include Counter Espionage 201, Advanced Propaganda
402, Drone Strikes 310 and Intermediate Court Martial 380. Defense counsel with exceptional
counter-attack acumen may be permitted to enroll without the listed prerequisites upon the
recommendation of his/her faculty advisor ( i.e. , managing partner or general counsel).
Conclusion
The War College course catalog is designed to instruct counsel on available counter- offensive
strategies when tackling an utterly vexatious and unjustified suit. In the quest for “Duty, Honor,
Client,” these pointers can assist defense counsel to craft the most effective countermeasures.
Ronald J. Levine, a member of this newsletter’s Board of Editors, is the Co-Chair of the Litigation
Department at Herrick, Feinstein LLP, with offices in New York, Newark, and Princeton, NJ. Leah
Kelman is a litigation associate with the firm. Reach them at rlevine@herrick.com and
lkelman@herrick.com, respectively.
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