CPR Product Liability Toolkit


The Business Case for Early Resolution of Claims

  • Fewer than five percent of all product liability cases filed in court are tried to final judgment. 

  • In litigation, time is money and it is in the parties' interests to minimize the amount expended in transactional costs—including counsel and expert fees and discovery costs. 

  • Settlements struck on the courthouse steps are often less favorable than settlements obtained earlier in the process and the transactions costs of waiting to the eve of trial can more than offset any perceived benefit of later settlement. 

  • Time spent by business on litigation is time taken from focusing on the core business.

THE CPR PROTOCOL FOR THE EARLY RESOLUTION OF PRODUCT LIABILITY CLAIMS [Tab 1] provides a disciplined framework within which business can consistently achieve more efficient and cost-effective outcomes in product liability litigation. The Protocol consists of five elements: 

  • A Corporate Pledge to use the Protocol in all product liability cases—The Pledge serves as a “neutral” basis for beginning negotiations with the other party without any implications of weakness or fault. [CPR 21st Century Pledge and CPR Pledge—Tab 2] 

  • Whenever possible, incorporation of an Early Resolution process in any contractual agreements of a type that may result in product liability claims. Where that is not possible, a commitment to transform standard court-adjunct mediation (which is now nearly universal) into a substantive Early Resolution process using skilled settlement counsel and/or mediators. [CPR Model Mediation Clauses—Tab 3; Economic Litigation Agreement—Tab 4] 

  • Early Case Assessment to analyze the strengths and weaknesses and financial implications of a claim at its inception. The results of the Early Case Assessment form the foundation of the strategic plan for the case, including identification of necessary information exchange, identification of any issues that may require a decision prior to Early Resolution efforts, optimal timing of Early Resolution efforts, and the form of Early Resolution (negotiation or mediation) most likely to result in the desired outcome. [CPR Corporate Early Case Assessment Toolkit—Tab 5; CPR Suitability Guide—Tab 6; Early Case Assessment Executive Summary—Tab 7] 

  • Limited Early Information Exchange designed to assure that both parties have sufficient information upon which to reach Early Resolution. [Sample Agreement—Tab 8; for other examples, see CPR Economic Litigation Agreement—Tab 4 and CPR Global Rules for Accelerated Commercial Arbitration, Rules 11-12—Tab 9] 

  • Initiation of an Early Resolution process leveraging the results of the Early Case Assessment and Early Information Exchange and using skilled settlement counsel and/or a mediator to maximize the likelihood of success. [CPR Mediation Procedures— Tab 10; See discussion of roles and approaches in the Protocol—Tab 1 and Success Story—Tab 11]
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