Incorporating mass tort cases into your firm’s portfolio can be the component that takes your firm to the next level. It can also be an overwhelming undertaking. Before you start, make sure you have a thorough understanding of the mass tort process, as well as what business model will work best within the existing structure of your firm.
Here’s a simple framework to follow for each consideration:
Business Model
There have evolved three basic models amongst firms who want to take the leap into handing mass tort litigation: (1) full service model, (2) marketing and advertising model, or (3) some combination thereof.
To determine which one is right for you, ask:
• Am I equipped for the long-term significant investment that is required for acquiring, screening and fully litigating hundreds or thousands of claims?
• Should I sign up cases with my own resources and subsequently co-counsel with a partner firm that’s well-versed in mass torts and who can undertake most (or all) of the costs?
• Is it most advantageous for my firm to take an active role in the litigation but not seek out a leadership position?
Planning carefully for the capital you’ll need for whichever model you choose is imperative. Choose the scenario that fits best within your firm’s capacity and the budget you’ve set forth.
What Types of Mass Torts Cases should I Acquire?
Determining which mass tort cases to get involved in is an important part of the process. Similar to single event cases, not all mass tort cases are viable—when investing significant resources as dictated by mass tort litigation, you’ll want to be confident in the choice you make.
Tip—Do your research on the science and experts that currently support the claim. Has the litigation survived Daubert/Frye? Have there been specific causation rulings? Have there been any bellwether trials?
Take an active role in investigating the claims yourself, rather than relying on feedback from other firms. By putting as much effort into researching your potential mass tort cases, you’ll help to increase the chances of success.
Tip—Budgeting for a specific “per-plaintiff” cost before you head out to gather clients in a specific litigation can help you stay on-course and prevent overspending at the outset of your endeavor.
For instance, cases in the early stages of becoming the next “hot” mass tort may be fairly inexpensive to obtain. For example, a newer tort may be relatively inexpensive for you to acquire clients. But as time goes on, if the litigation develops successfully, the costs can increase drastically as the pool of potential plaintiffs decreases.
Tip—if you can estimate how much the cases you take on will settle for and what your fees will ultimately be, you can better prevent overspending.
For instance, if you can obtain 10 cases at $500 per case with a $25,000 per case value, the costs may be easily justifiable. If the same 10 cases cost $2,000 per case, you’ll need to weigh how to proceed.
Obtaining Clients
First, determine who your target audience is. What is the age, race, religion, gender, income, education level, etc. of your best potential client Also, it’s important to consider how that group of individuals get their information. Should you launch a television advertising campaign, take to the radio waves or advertise in the local papers?
Once you identify these factors, you can begin to plan a marketing campaign.
Key media channels—like TV ads—that can give you a nationwide “reach” are likely to be expensive to undertake. Many times it’s smart to enlist the help of an advertising agency who can spearhead the development of your campaign and also the associated media buy required to get your message out there.
Alternatively, you may decide that partnering with a firm already involved in a specific tort may be the best way to go. A co-counsel firm may have already gone through the process of establishing a national presence and have a large-scale marketing campaign fully underway. In this scenario, you may be able to invest in their efforts with the confidence that the results you expect will be produced.
Handling Operations
The process doesn’t stop once the phone starts ringing. When planning for an influx of clients to come your way, you need to have a solid plan in place on how to handle intake and evaluation of their cases. Is your current staff equipped to undertake the additional work?
Your options include:
Keeping things in-house—you’ll need to determine if an incoming case is a good fit. A “Plaintiff Fact Sheet” (PFS) can be used to determine who fits the initial case criteria, especially when you’re receiving a high volume of leads.
Firms who are heavily into the litigation from the outset have already set forth what constitutes a viable claim. You could also consider having a marketing or lead generation company complete this step for you, but it will cost you.
If you opt to keep your cases in-house, here are some of the expenses you can expect to incur:
- Staff members to process the PFS and also a team to monitor for “quality control”—you don’t want to eliminate or maintain the wrong clients.
- Medical records retrieval and product identification—for example, in talcum powder litigation the cost for full evaluation of the tissue sample to prove talc is the cause of a plaintiff’s ovarian cancer can be staggering.
Ethical Issues
Although you may never personally meet with every single one of your mass tort clients, you still maintain an ethical responsibility to each of them.
Ensure your clients are always made aware of any possible conflicts that may arise from your firm representing a large number of plaintiffs in any given litigation. It’s wise to have a standard process in place for informing clients of the status of their case from the beginning to end of the litigation and beyond.
It’s easy to get excited about the opportunities the mass tort arena presents to you and your firm. Understanding the pros and cons prior to jumping in is essential. As such, you’ll be able to make an informed decision on the best route for your firm to take when entering mass tort litigation.
