Settlement negotiations in complex litigation take time, persistence and ultimately, leverage—the kind that comes from good data. In fact, data has significantly changed the way settlements are being negotiated in class action and mass tort litigation involving issues such as faulty consumer products, defective medical devices, dangerous drugs and toxic exposures.
The power of data – access and analytics
Having access to quality data and data scientists who know how to interpret it is becoming crucial in negotiating settlements in complex litigation. Plaintiff lawyers can now take advantage of the same analytics capabilities that defendants have been utilizing for decades in order to quantify damages and argue from a position of strength because of the information available to them through discovery and within the records of their own firm.
For example, in the negotiation of mass tort claims settlements, properly-analyzed data can be used in numerous ways to gain valuable leverage:
- To forecast settlement ranges for cases. Predictive modeling techniques can make use of patterns in a large population of mass tort cases (using such data points as injury, age and various confounding factors) to determine the range of possible outcomes and help structure opening bids in settlement discussions that are likely to drive acceptable settlements. Nothing provides greater leverage at the negotiating table than facts backed by expert analysis.
- To quantify and substantiate damages in individual cases, such as bellwether cases, based on historical data for similar cases. Examining historical data can provide important insights into how substantially similar cases were resolved, for how much, and – most importantly – shed light on particular facts the opposing side thinks may have the greatest impact on the results. Knowing what the other side values can provide significant insight for conducting any negotiation.
- To forecast the future. Predictive modeling techniques can also be used to forecast the future injuries likely to arise as a result of a defective medical device, dangerous drug or toxic exposure, thus giving attorneys more information to develop a settlement strategy that maximizes outcomes for present and potential future injuries alike.
- Structure settlements to ensure appropriate consideration of overhead costs, resolution of liens, settlement trust and bankruptcy provisions, attorney fee structures and other considerations that can impact the allocation of settlement proceeds.
Using the techniques described above, as well as others, data analytics can provide a valuable road map for the negotiating process, providing plaintiff attorneys with a broader and deeper view of the settlement landscape. Analytics – when thoughtfully utilized – can bolster your negotiating position with both granular detail and comprehensive information that simply was not available in years past. The end result: insights that help you tell a more convincing story, thus gaining powerful leverage in settlement negotiations.