Tuesday, April 25, 2023
Burch on Improving MDLs
Elizabeth Chamblee Burch has posted to SSRN MDL for the People. The abstract provides:
By the terms of its own statute and the limits of its constitutional authority, multidistrict litigation (“MDL”) is designed to transfer and coordinate individual lawsuits then return plaintiffs back to their chosen fora for case- specific discovery and trial. Because each plaintiff is present and has her own lawyer, there is no need for the judge to police conflicts of interest or attorney loyalty as in the MDL’s kin, the class action.
But these assumptions do not match the empirical reality. Remand is rare. MDL judges resolve ninety-nine percent of the cases before them. And to some attorneys, the people of MDL are just numbers on a spreadsheet, not clients with their own agency. In conducting this first-ever study of MDL plaintiffs, we explore their experience. By moving their cases far from home, courts and attorneys seem to say “trust us.” But knowledge is essential to trust, and study participants knew little about the status of their case, their judge, or even the identity of their attorney.
Three things were clear to participants. First, they were aware of how little they recovered. Second, from their perspective, justice had not been done. Only 1.8 percent felt their lawsuit accomplished what they hoped it would. And finally, participants wanted to be informed and involved.
To salvage MDLs, courts must empower plaintiffs through technology and transparency. Technology can open access to courts, bring plaintiffs into the process, and give them a voice without sacrificing MDL’s efficiencies. Creating online forums can cut through the layers of lawyers and allow plaintiffs to communicate directly with lead attorneys and each other. Armed with information and opportunity, plaintiffs can also hold attorneys accountable by evaluating them. Placing leadership performance reviews on court dockets and using them as a factor in awarding leaders’ common-benefit fees can give them weight while bringing organizational theory to bear on future leadership selections. Finally, disciplining and sanctioning individual lawyers for unethical conduct can disrupt neglect and improve the public’s faith in the system.