Professor Stephen Gillers has referenced Samuel Beckett’s absurdist play, Waiting for Godot, in choosing the title of this article that debunks two misconceptions in litigation financing. He enumerates the numerous ways there currently exist for non-lawyer involvement in litigation and surveys arguments that litigation funding gives rise to more expensive settlements and wasteful trials. Not only is Professor Gillers brilliant in his analysis and commentary but we find that in his choice of this title, he has a good sense of humor.
Bentham has been, and always will be, committed to the principle that all individuals have the right to have access to justice. Indeed, this tenet is built into Bentham’s “Code of Best Practices” which specifically sets forth that “the funder shall devote executive time and resources to pro bono projects for those unable to pay for their own legal services.” In Australia, we see this carried out in Bentham’s support of the Public Interest Advocacy Centre (“PIAC”).
Bentham IMF is pleased to announce that on Thursday, October 30, 2014, senior Investment Manager Jim Batson will be leading a Continuing Law Education program with the Practicing Law Institute entitled “Accessing Justice: Ethics and Lawsuit Financing in a New Era.” As most attorneys know, the expense of bringing a case to trial for attorneys, firms, and the parties themselves can be astronomical. In this engaging and informative program, James Batson, an attorney with over 20 years of litigation expertise, will introduce the use of litigation funding as a modern means to ensure that meritorious cases get the commitment of resources they deserve. In addition to introducing the basics of litigation funding and how it can be integrated into every step of litigation strategy, Jim will address numerous Rules of Professional Responsibility and how they intersect with litigation funding.
A decade ago, Bentham’s Senior Investment Manager Jim Batson won a historic legal verdict that continues to reverberate throughout the world of litigation. That case, Zubulake v. UBS Warburg, was the first time a court opined how e-discovery such as emails should saved, managed, and produced in discovery. The case was so historic that the ABA Journal in its September 2014 issue revisits the case and Batson’s pivotal role in it. Inconceivably, prior to Zubulake, emails were not always considered “documents” under discovery rules. Today, with ever-increasing numbers of emails and other types of e-discovery (including the explosion of discoverable evidence from social media sources such as from Facebook and Twitter), the need for proper funding resources – including the use of litigation financing - to prepare one’s case is essential.
The financial and retail markets now know no borders. Corporate branding and access to social media and the Internet allow a Japanese equity trader to trade in the US markets at night from his home in Tokyo, an athlete to buy Nike’s almost anywhere in the world, and a family to eat at McDonald’s wherever they travel. This globalization will increase corporate liability to international claims, and a corollary to that will most likely be an increase the need for litigation funding. Bentham, the only litigation funder with offices on three continents, is ready to meet this need.
The strong sentiment about the advantages of arbitration has been disproven in three recent cases. In many instances, arbitration is mandatory but when there is a choice, you must carefully weigh the risk-reward of arbitration versus litigation. It isn’t always what you think.
It is one thing to claim that you are transparent but it is another thing to be transparent. In this blog we've taken a selfie together with our parent company in Australia. We discuss two recent investments in cases that have been realized and where litigation funding provided access to justice.
Since its launch in 2001, Bentham IMF has served as a thought leader for the commercial litigation finance industry. This past year, Bentham IMF in the US has initiated a series of roundtables, where distinguished academics and lawyers discussed critical issues and best practices for the industry. In the first half of 2014, Bentham IMF co-hosted a roundtable at Stanford University’s Center for the Legal Profession. The results of our thinking coming out of this roundtable were interesting.
You can take it with you, or perhaps you cannot take it with you. Is unfinished business the property of a defunct firm that has closed involuntarily and therefore subject to attachment by creditors or is unfinished business the property of the partners of a firm that closed voluntarily and who have moved on to a new firm? We’ve reviewed four decisions where the circumstances of a firm’s closing impacts the right to unfinished business profits.
In the fall of 2013 Bentham IMF invited Professor Charles Silver and a group of distinguished academics, senior litigators and commercial litigation funders to discuss the evolution of litigation funding, the ethical and legal issues in the field and the efforts to increase acceptance. Professor Silver holds the Roy W. and Eugenia C. McDonald Endowed Chair in Civil Procedure at the School of Law at the University of Texas at Austin. In these interviews he discusses the similarities and differences between litigation funding and liability insurance.
Bentham IMF agrees with the recent article "Claims Without Merit are the Problem, Not Trolls" published in the April/May 2014 issue of GENERAL COUNSEL by Marla R. Butler, a partner at Robins, Kaplan, Miller & Ciresi LLP. The article takes attention surrounding patent litigation reform away from patent trolls to focus on the real issue at hand -- meritless claims. Ms. Butler gives a succinct summary and explanation on those activities that lend to meritless, problematic claims and identifies how individual States are taking action.
In previous blogs we have discussed whether or not availability of funding means that there will be an increase of frivolous law suits. Certainly from reviewing Bentham’s track record, we believe that the courts feel that Bentham is funding meritorious claims. Now we turn to a discussion of whether or not the relaxing of ‘loser pays’ rules in the United States will increase the demand for litigation funding. Whether or not we see an increase of patent claimholders seeking to share in the risk of a potential ‘loser pays’ scenario, we note that for the past twelve years, Bentham has been funding cases in Australia where the ‘loser pays’ scenario applies to all litigation.
Jim is the newest addition to the Bentham IMF team. It will be obvious to you once you read his bio why we are so excited to have him. Not only is he a seasoned litigator but he has financed litigation and consulted to a litigation finance firm. What you won't know until you meet him in person is that he is very tall. At 6'4" and an athlete, he will be a powerful team member if anyone challenges the Bentham group to a game of basketball, tennis or baseball.
The DNA of liability insurance shares some genes with commercial litigation finance, yet the "cousins" have different genes as well. We usually speak of the evolution of living species and how one population of a species changes over time. Here we compare the evolution of the acceptance of liability insurance with the evolution of commercial litigation finance – a newer tool to protect liability -- and its growing acceptance.
Ralph Sutton was invited to give a presentation on litigation funding to an august group of mediators and arbitrators at the 16th annual JAMS owners conference in Miami. JAMS mediators and arbitrators handle cases ranging in size, complexity and industry. Of course, their first choice is to successfully resolve cases without going to litigation. When successful, this route is often more efficient, less expensive and more private than the alternative – litigation. However, sometimes things do not work out as planned and the two sides move on to litigation. Everyone involved in the case should be aware of the opportunities that litigation financing might present to get the case resolved on what might be considered Plan B.
In the fall of 2013 Bentham IMF invited Professor Charles Silver and a group of distinguished academics, senior litigators and commercial litigation funders to discuss the evolution of litigation funding, the ethical and legal issues in the field and the efforts to increase acceptance. Professor Silver holds the Roy W. and Eugenia C. McDonald Endowed Chair in Civil Procedure at the School of Law at the University of Texas at Austin. In these interviews he discusses the similarities and differences between litigation funding and liability insurance.
Professor W. Bradley Wendel is a Professor of Law at Cornell Law School. His experience has been as a litigator, judicial law clerk and educator. Brad joined the Cornell faculty in 2004, after teaching at Washington and Lee Law School from 1999-2004. Before entering graduate school and law teaching, he was a product liability litigator at Bogle & Gates in Seattle and a law clerk for Judge Andrew J. Kleinfeld on the U.S. Court of Appeals for the Ninth Circuit. His teaching interests are in the regulation of the legal profession and torts, and his research focuses on the application of moral and political philosophy to problems of legal ethics.
Although you may never meet Stephanie in person, you will certainly come in contact with her by phone or email. As head of US operations for Bentham IMF, Stephanie’s outreach includes claimholders and lawyers who are looking for commercial litigation funding, vendors and new hires.
With the opening of an office in London, Bentham IMF Ltd can now claim that it is the only commercial litigation funding company that has working offices on three continents. Being a global company with 8 offices around the globe means that the Bentham IMF companies are accessible to more claimholders who require financing for their cases.
Commercial litigation funding and liability insurance are in many ways strikingly similar and in many ways they are very different. You can consider them mirror images of each other. While both are designed to help the party deal with the consequences of litigation by shifting the costs and risks to someone else, commercial litigation helps the plaintiff; liability insurance helps the defendant.
