We’ll report here on one last thing that we heard at the ALI Mass Litigation conference in Charleston last month — because they are words that should be in the public domain.
A plaintiffs’ lawyer speaking at the conference said that MDL transferee judges create trouble when they appoint to the plaintiffs’ steering committee lawyers who represent no clients in the underlying mass tort.
Thus: A prominent plaintiffs’ lawyer seeks a spot on an MDL steering committee because of his or her reputation as a mass tort lawyer, even though the lawyer doesn’t represent any plaintiffs in this particular mass tort. The MDL transferee judge appoints that lawyer to the steering committee.
There’s then an opportunity to settle some or all of the cases in the litigation at a fair price.
The lawyers who actually represent clients in the mass tort would like to accept the settlement. They think the settlement is good for their clients, and the lawyers will be paid their contingent fees extracted from each client’s settlement payment.
But the lawyer who’s on the steering committee and represents no clients has an entirely different agenda. That lawyer has no contingent fee interest in the litigation; he or she is paid out of the common benefit fund only for hours spent working on the case. That lawyer thus wants the case — and the hours — to continue, whether or not the proposed settlement is in the clients’ best interest.
We have two reactions to this: First, we didn’t make this up. We heard it from the mouth of a prominent plaintiffs’ lawyer. MDL transferee judges should consider this perspective when they’re appointing counsel to the plaintiffs’ steering committee.
Second, we don’t want to hear that “defense lawyers prolong litigation for the same reason.”
We’re certain that some defense lawyers prolong litigation to maintain a stream of revenue.
But intelligent, competent defense lawyers do not. Intelligent, competent defense lawyers know that, if they dispose of a case quickly and efficiently, a satisfied client will return with new work in the future. Quick victories yield more business.
Moreover, if a defense lawyer establishes a track record of disposing of cases quickly, other clients, too, will retain that lawyer based on his or her reputation.
On the plaintiffs’ side, in the context of a steering committee, the incentives are different. First, a committee is a committee: No one plaintiffs’ lawyer will get credit for obtaining a quick, valuable settlement of a mass tort.
And even if one lawyer did get that credit, product liability plaintiffs are different from product liability defendants. Plaintiffs are individuals who have allegedly been injured; defendants are institutions. Plaintiffs are thus not repeat players who are in a position to reward successful counsel by retaining them again in future litigation.
We won’t, however, use this post as a soapbox.
(Don’t fret. We’ll probably use our next post as a soapbox.)
Rather, we’ll just urge MDL transferee judges to consider the benefits of generally appointing to plaintiffs’ steering committees lawyers who have some skin in the game — those who represent clients in the underlying mass tort.