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'Back Channel Diplomacy' As a Litigation Technique

By Michael Brophy

In this writer's experience, the majority of medical malpractice cases involve a primary target defendant, usually a hospital or attending physician, often joined with multiple codefendants with less potential exposure. It is not uncommon to find three or more defense firms playing active roles in the discovery process, and, for purposes of this article, we shall refer to those defendants with lesser potential exposure as 'secondary defendants.'

In two cases resolved this year, I observed the effective use of defense counsel representing such secondary defendants in what I would describe as 'back channel diplomacy' as a means to maintain lines of communication between the primary or lead counsel. In this context, I would define 'back channel diplomacy' as informal communications between adversaries in which counsel other than the attorneys representing a primary defendant are authorized to speak privately with lead plaintiff counsel on issues relevant to the litigation.

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