Thursday, September 12, 2019

Mass Tort Deals - Chapter 3

Chapter three in Mass Tort Deals by Elizabeth Chamblee Burch tackles repeat player dynamics in aggregate litigation.  If you're interested in earlier posts on it, they're available here and here.  

My biggest takeaway is that for the attorneys in this space, if they want to be in the room where it all goes down, they've got to bro down socialize and remain well-thought of by their well-connected colleagues. A lawyer's ability to make a living in the space and generate results for clients seems to depend on relationships with other key players. So much depends on being well-connected:

  • the ability to get a leadership appointment;
  • the ability to get some of the work flow;
  • the ability to get a decent fee allocation;
  • the ability to get a settlement favoring your "inventory" of clients; and
  • the ability to get other attorneys to back any play you make.

Functionally, this means that attorneys face intense incentives to get along with other attorneys in the space.  This probably does not produce solid strategic behavior because attorneys may be more likely to simply agree with well-connected leaders than to press for things that might rock the boat a bit but generate better outcomes for all plaintiffs swept up in the aggregate litigation vortex.  Burch does a great job of bringing stories forward about questionable litigation decisions likely driven by this process.

Burch also breaks down how pairing these incentives with known shortcomings in group decision-making poses real risks for actually getting cases ready for trial.  Lawyers with better situated test cases or a different understanding than group leaders may not put their information before the group or be able to get their cases ready.

One thing that struck me was how the size of the committees managing the litigation might not be well-suited for effectively operating.  I've seen this dynamic myself.  A small group of 4-5 can generally work well together.  When groups double in size, we don't tend to be as effective.  Judges tend to appoint groups of 12 or more.  Judge Eldon Fallon apparently appoints 12 because "there were 12 apostles."  And I guess that makes sense if you want a group that will mostly just bow down and follow the leader around.  But if you want a group to share power and operate strategically and effectively, a 12-15 lawyer committee might not be the right size.

Ultimately, I'm not convinced that the processes we have now result in adequate representation.  Part of it may be that the plaintiffs in these cases need to develop discovery in different ways.  Conducting consolidated discovery may result in material of some general utility but significantly less utility than a more focused preparation process.  Burch tells the story of a lawyer who wanted to take a tight deposition for use at trial but couldn't because of all the other lawyers that got into the room and dragged the proceeding out.  In that lawyer's telling, it produced a deposition that lots of lawyers got involved in and billed time to but also one that offered significantly less utility for actually trying a case than a more focused one.

We also generally lack actual legal authority for governing these proceedings or the duties the leading lawyers involved actually owe to claimants who are not their direct clients.  It seems as though moving toward something more similar to class action processes and norms would do more to protect actual victims. 

This whole area of law seems like a train wreck.  This is fitting because this area of law might also be the procedural vehicle to deal with injuries arising out of a train wreck.

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This astute review sheds light on the paradox of the unequivocal adages “learn to play the game” and “do the right thing” while examining power plays afforded by principal attorneys within legal group dynamics. The commentator has opened the door to reveal a powerful admission buried in the litigation process. Perhaps, this has been an open secret all along? Nevertheless, it is food for thought.

Enjoyably read,

Jane, PhD*

Posted by: Jane Meadows | Sep 15, 2019 10:19:26 AM

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