Plaintiffs in Mass Tort Cases Not Happy With Their Lawyers

Plaintiffs in mass tort cases are generally not happy with their lawyers.

Elizabeth Chamblee Burch
University of Georgia School of Law

That’s according to a new study – Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd – by University of Georgia Law Professor Elizabeth Burch and Margaret S. Williams, a visiting scholar at the Federal Judicial Center.

The authors surveyed more than 200 plaintiffs in mass tort cases in which the defendant targeted its product toward women.

“Lawyers did little for the clients they stockpiled,” Burch and Williams write. “When it came to their attorney experience, 64% of participants were somewhat or deeply dissatisfied, 50% did not feel that they could trust their attorney, 59% received few or no status updates, and 67% did not understand what was happening with their lawsuit.”

“And though plaintiffs had many goals, from compensation to protecting others to holding corporations accountable, a mere 1.8% of all participants felt their lawsuit accomplished what they hoped.”

The authors find that a settlement culture has overtaken mass tort multi-district litigation (MDL).

“Still, it’s not just the settlement culture that differs in MDL, it is the settlement structure itself,” Burch and Williams write. “Rather than settle directly with plaintiffs, defendants strike deals with plaintiffs’ law firms that allow them to impose conditions on both plaintiffs and their counsel. Because corporate defendants want to maximize closure, the terms they insert incentivize plaintiffs’ attorneys to strongly encourage their clients to take the deal.”

“For example, walkaway, withdrawal, or ‘blow’ provisions allow defendants to terminate a settlement offer if too few plaintiffs settle, meaning that no one – attorneys included – gets paid.” 

“Attorney-recommendation provisions require plaintiffs’ lawyers to uniformly recommend that all of their clients settle, while attorney-withdrawal provisions go one step further by demanding that lawyers withdraw from representing clients who refuse.” 

“Despite their prevalence, all but the walkaway provision have been called unethical under the Model Rules of Professional Conduct.”

The authors ask – Why do plaintiffs sue? 

“In her 2007 study of medical-malpractice plaintiffs and attorneys, Tamara Relis documented the gap between what lawyers assumed their clients wanted – principally money –  and what clients actually wanted – a litany of non-fiscal objectives like admitting fault, retribution, protecting others, seeking answers, demanding apologies, acknowledging harm, and punishing the defendant.” 

“Only 18% of the 17 plaintiffs in Relis’s study wanted money alone and 35% articulated money as a secondary objective. Gender dynamics likewise played a role, with women exhibiting ‘unease in discussing the compensatory element’ in ways that were absent for men.”

The authors cite Gillian Hadfield’s survey of September 11, 2001 victims.

The survey “revealed that choosing to litigate versus receiving a payout from the Victim Compensation Fund was about more than just money.” 

“They wanted information about what happened, to hold responsible parties accountable, and to prevent future terrorist attacks. Similarly, named plaintiffs in consumer class actions hoped to generate corporate accountability, help others affected by similar conduct, stop unfair practices, and send a message to other companies within the industry.”

Burch and Williams asked the plaintiffs – Why did you decide to sue? 

“Like previous studies, they had multiple goals, and said things like: ‘To stop women from getting slaughtered by this garbage and to seek compensation for current [and] future medical expenses.’ 

“Unlike Relis’s study, participants principally sought compensation for medical expenses and pain and suffering, though many also wanted to hold companies accountable, protect others from faulty products, have doctors and corporations acknowledge the harm they caused, punish defendants, and have their stories heard.”

“Participants bore no resemblance to the money-hungry plaintiffs depicted in pro-tort reform propaganda,” Burch and Williams observed. 

Burch and Williams say that “MDL contributes court access and cost savings – perhaps principally for attorneys –  but exacts a steep toll on legitimacy, dignity, accuracy, and due process.” 

Plaintiffs too often feel forgotten, they write. 

“Thank you for asking me about my experience. It is nice to know it matters to someone,” one participant told Burch and Williams. “I hate being a victim but the legal system screwed us just as bad as the doctors and mesh manufacturers.” 

Williams and Burch conclude that “MDL’s legitimacy hangs in the balance.” 

“Both the courts and the public need an efficient process for resolving mass harms, but MDL cannot thrive on efficiency alone. It must bend to serve the needs of the people forced to rely upon it – not just the demands of the judiciary and repeat players.”

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