(Posted 1/30/2009)
This memo assignment, the first of three, is designed to reinforce material discussed in class and to help you exercise analytical and practical skills in transactional planning, in preparation for the more complicated assignments we will undertake after we return from spring break. As indicated in the course syllabus, 10% of your final grade will be determined your performance on the memo assigments.
Please submit your memo via e-mail to Nick Harley, our TA, at nicholas.harley@law.columbia.edu. To help him keep track of all the files he receives, please give your memo a filename that includes your last name (e.g., myname.memo1.doc). Please also be sure to include your name somewhere in the memo text as well.
We will presume, unless you tell me otherwise in your cover message, that if we find your essay to be among the best we receive, we have your permission to post it [with your name deleted] as part of our feedback to the class. If you do not wish to grant such permission, please let us know expressly.
This assignment is due on or before Friday, February 6 at 5 pm. Extensions will not be granted absent compelling circumstances. You should not do any additional research in preparing your analysis, beyond the materials assigned for class and the link provided below.
You are a lawyer in the consumer protection division of the state attorney general's office. Preliminary investigation as well as some undercover stories in the press reveal the possibility of a major billing scandal involving the health-care industry. Following the growing number of states that have recently pursued such claims against tobacco firms, the State plans to bring separate suits against a large of number of hospitals, clinics, and other health-care providers. The total damages claim will be more than a hundred million dollars, and perhaps as much as a billion dollars.
Your office has only four attorneys, all quite busy, and none with experience in large-scale complex litigation of this sort. You have been authorized to hire a large outside law firm that does specialize in this type of litigation. Several prominent plaintiff's firms have expressed interest in the project and have met with you.
You have been asked to propose a compensation scheme that would be offered to interested firms. You should assume that although the litigation has the potential to be lucrative, it is by its nature unclear if any of the suits will prevail and difficult to predict how much would be recovered if the litigation succeeds. Also, because the litigation involves complex factual questions about cost accounting and medical-care decisions, pursuing the litigation aggressively will require a very large up-front investment to collect and analyze appropriate information about the defendant's practices and to retain experts to evaluate that information.
Your proposal should discuss (a) any up-front payments between the parties; (b) who should pay expenses as the litigation proceeds; and (c) the structure of the fee to be paid to the law firms at the conclusion of the representation. You should be sure to explain how the structure of your proposal ensures the appropriate amount of effort and expense by the law firms and the state collectively. You also should feel free to consider alternate proposals, discussing the strengths and weaknesses of each. However, you should write concisely, since your memo should be no longer than two pages.
As additional background and as illustration of the timeliness of this topic, you may find it useful to read the article that appeared (by coincidence) on the front page of today's New York Times, entitled "Billable Hours Giving Ground at Law Firms."