Left to right: Jennifer Dlugosz, partner with Husch Blackwell, Molly Jones, senior assistant general counsel, litigation, with Monsanto, Michelle Weber, litigation paralegal with Monsanto, and J.Y. Miller, partner with Husch Blackwell.

For legal departments, a close look at history can be the key to understanding how to better manage the present—particularly when it comes to a company's litigation docket.

Monsanto has proven the value of evaluating future litigation threats using data from the past when it comes to asbestos cases. The endeavor recently earned the agriculture company and Husch Blackwell, one of the company's main outside firms for asbestos litigation, an award for excellence in legal operations from the Association of Corporate Counsel.

The idea for the project that earned Monsanto and Husch 2018 ACC Value Champion honors emerged about three years ago when the company was looking to take some of the work and decision-making around its asbestos docket away from the legal department and senior assistant general counsel Molly Jones and send it to Husch.

According to Jones, the impetus behind the new system was more efficiency than necessity for the St. Louis-based company.

“I wouldn't say there was a problem. I think there is always at Monsanto, a desire for the legal team to address the big picture,” Jones said. “The asbestos docket was an obvious opportunity to take some of the smaller things and more day-to-day management out of my hands and put them in Husch's hands so we could look at the picture a little more quickly.”

Together, Jones and J.Y. Miller, a partner at Husch, moved forward to create an algorithm to assess the risk Monsanto faced in asbestos litigation. Miller explained that in asbestos cases the risk level for the claims is not always obvious. He said now there are 100 variables that go into assessing risk. 

“It helps inform decision-making on the front end. It helps inform what the potential threat is to this case and that informs the decision Molly has to make, what kind of resources will I choose to invest,” Miller said.

He said the risk assessment helps communicate a very specific plan to the local outside counsel handling these matters for Monsanto on a case-by-case basis.

Miller said it was important that the case assessment tool would give Jones the ability to be able to make more efficient strategic decisions, but it was also essential to find a way for outside counsel handling those cases to be able to make decisions on Jones' behalf without having to constantly go to her.

Jones, Miller and a number of others in IT and accounting departments worked together to create the algorithm.

“From beginning to now, it's been about three years and we now have about two years of good information and data on how it's been working,” Jones said.

That effort has paid off. As a result of implementing the algorithm, the number of active asbestos cases has declined by 53 percent and settlement costs were reduced by 30 percent. Spend on outside counsel is down by 10 percent on this type of litigation.

Aside from the algorithm, another important component to Monsanto's case assessment model is its outside counsel billing suite. This tool doesn't just make sure bills are paid, but it checks to make sure billing activity matches the plan that outside counsel has been given.

“When we started to develop the model, we knew we had to incorporate technology to increase efficiency but we weren't seeing the technology in the market that we needed. Our Husch IT folks, working with the Monsanto tech folks, constructed this outside counsel billing suite from the ground up and we used it,” Miller said.

Jones said that especially with the asbestos docket, which included cases in 21 states and 70 jurisdictions, it has sometimes been difficult to know if Monstanto is getting its money's worth.

Miller and Jones both agreed that communication and recognizing who the right partner would be was key in the joint early case assessment project.

“You have to choose the right firm and the right person within that firm to work with you on this—so that's someone that you have very frank conversations with. Someone that you can communicate well with. It does take some adjustment in thinking,” Jones said.

Jones said that she has considered using the model in cases in areas outside asbestos, but there would need to be a few adjustments.

“I have [thought about it] and I think every type of case is going to be different. I think it's repeatable. I've thought about some of our legacy chemicals like benzene where we have dockets span different jurisdictions but rely upon a lot of similar background and facts and benzene is definitely one of those,” she said.

She said one important element of the case assessment tool around asbestos was the existence of documented history of the company's handling of this particular type of matter. Jones said that a brand new set of cases in a different area may be tougher to evaluate because there may not be as much knowledge and documented case history information available.