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Journal of Tort Law

Founded by Coleman, Jules

Editor-in-Chief: Robinette, Christopher

Editorial Board Member: Geistfeld, Mark A / Goldberg, John / Perry, Ronen / Sharkey, Catherine M. / Witt, John / Zipursky, Benjamin

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1932-9148
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Repeat Players in Federal Multidistrict Litigation

Margaret S. Williams / Emery G. Lee III / Catherine R. Borden
Published Online: 2014-04-17 | DOI: https://doi.org/10.1515/jtl-2014-0011

Abstract

In Mass Torts in a World of Settlement, Richard Nagareda noted the importance of the highly specialized bar in creating the existing multidistrict litigation (MDL) landscape. In fact, Nagareda argues that mass torts “accentuate the role of lawyers as agents” who make and enforce a “grand, all-encompassing peace” (2007, p. ix). The influence this bar wields is so great that much of the book is dedicated to discussing potential limits on these administrators. Similarly, the emergence of a specialized segment of the bar is noted by several scholars of MDL, but there has been little systematic research. Using social network analysis, we look to address this issue by examining clusters of plaintiff attorneys over time. We find that the bar is really broken into two groups: generalists, working in several types of MDL proceedings, and specialists, those who tend to focus on a single type of MDL. These findings suggest not all types of proceedings operate in the same way. Moreover, we find that there is significant variation among proceedings in the pace at which specialized lawyers join the litigation.

Keywords: Multidistrict litigation; repeat players; network analysis

About the article

Published Online: 2014-04-17

Published in Print: 2012-01-01


Richard A. Nagareda, Mass Torts in a World of Settlement, Chicago, IL, USA: University of Chicago Press (2007) (hereinafter, Mass Torts).

See id. at 13 “A distinction between what one might label ‘generic assets’ and ‘specific assets’ forms the backdrop for the development of mass tort litigation.”

See id. at 14 “The development of generic assets takes money. …A plaintiffs’ law firm … must incur considerable fixed costs to develop generic assets long before it can threaten credibly to precipitate a favorable verdict or settlement in a single case.”

See id. at 16 “Having invested in the development of a valuable array of generic assets, a plaintiffs’ law firm will have every reason to search for … additional clients. In economic terms, the goal is to spread the fixed costs of generic assets over even more units and … to achieve economies of scale.”

See Richard A. Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 163 (2003) (pointing to monopolistic tendencies among class counsel).

See Mass Torts, supra note 1, at ix.

Mass Torts, supra note 1, at 224.

Multidistrict Litigation Act of 1968, P.L. 90-926 (April 29, 1968, codified at 28 U.S.C. § 1407 (West 2013).

The Act provides for transfer of “civil actions involving one or more common questions of fact pending in different districts.” 28 U.S.C. § 1407(a). Former chair of the JPML Judge Wm. Terrell Hodges described the Panel in the following way: “Bear in mind that we don’t become involved, at all, in the merits of the claims or disputes in multidistrict litigation. We really are gatekeepers, deciding whether certain litigation should be let through the gates, so to speak, and, if so, where it should go. After that, it’s entirely within the prerogative of the transferee judge to manage the litigation and make all procedural and substantive rulings the case might require in a pretrial context.” Chair of Judicial Panel Sees Role as Gatekeeper, The Third Branch, Vol. 37, Num. 11, at 11 (November 2005).

See, generally, Thomas E. Willging & Emery G. Lee III, From Class Actions to Multidistrict Consolidations: Aggregate Mass-Tort Litigation After Ortiz, 58 Kans. L. Rev. 775, 797 tab.1 (2010) (listing the three largest products liability proceedings by year, 1992–2008).

Overview of Panel, http://www.jpml.uscourts.gov/panel-info/overview-panel (last accessed June 26, 2013).

Mass Torts, supra note 1, at viii.

Id. at ix.

See, e.g. John P. Heinz & Edward O. Laumann, The Legal Profession: Client Interests, Professional Roles, and Social Hierarchies, 76 Mich. L. Rev. 1111 (1978) (studying relationships among attorneys in Chicago).

Interestingly, Laumann and Heinz found that corporate practice was more prestigious among attorneys than other legal work. See Edward O. Laumann & John P. Heinz, Specialization and Prestige in the Legal Profession: The Structure of Deference, 1977 Am. B. Found. Res. J. 155 (1977).

Future research might, for example, explore the connections between the defendant attorneys’ network and the plaintiff attorneys’ network.

See Laumann & Heinz, supra note 14, at 155–56 (finding that 70% of attorneys surveyed reported specializing in one or more areas of law).

Marc R. Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc’y Rev. 95 (1974).

Id. at 98.

It should go without saying, but Galanter recognized that attorneys, as well as parties, can be repeat players. See id. at 114.

Id. at 98–103.

Id. at 100–03.

Lynn M. LoPucki & Walter O. Weyrauch, A Theory of Legal Strategy, 49 Duke L. J. 6:1405 (2000).

David Freeman Engstrom, Harnessing the Private Attorney General: Evidence from Qui Tam Litigation, 112 Columbia L. Rev. 1244, 1258 (2012).

Id. at 1261.

Thomas E. Willging, Laural L. Hooper, & Robert J. Niemic, Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules (Federal Judicial Center 1996).

Id. at 3.

Id. at 87–88; see also id. at 156. Typically there was more than one lead counsel in each case.

Id. at 299–300.

Susan Brodie Haire, Roger Hartley, & Stefanie A. Lindquist, Attorney Expertise, Litigant Success, and Judicial Decision Making in the U.S. Courts of Appeals, 33 Law & Soc’y Rev. 667, 678 (1999).

Id. at 681.

Catherine T. Harris, Ralph Peeples, & Thomas B. Metzloff, Does Being a Repeat Player Make a Difference? The Impact of Attorney Experience and Case-Picking on the Outcome of Medical Malpractice Lawsuits, 8 Yale J. Health Pol’y L. & Ethics 253, 280 (2008); see also Harris et al., 58 S. M. U. L. Rev. 225, 240–43 (2005).

Michael Perino, Have Institutional Fiduciaries Improved Securities Class Actions? A Review of the Empirical Literature on the PSLRA’s Lead Plaintiff Provision (Handbook of Institutional Investment and Fiduciary Duty, Cambridge University Press, Forthcoming; St. John’s Legal Studies Research Paper No. 12-0021. Available at SSRN: http://ssrn.com/abstract=2175217).

David Knoke & James H. Kuklinski, Network Analysis (1982) provides a general discussion of the technique and its applications. Stanley Wasserman & Katherine Faust, Social Network Analysis: Methods and Applications, New York: Cambridge University Press (1994) provides a comprehensive look at all models. John G. Scott, Social Network Analysis (3rd ed., 2012) discusses methodology as well as recent technological innovations and their impact on the study of networks. For an example of using SNA to study relationships among judges see, for example, Daniel M. Katz & Derek K. Stafford, Hustle and Flow: A Social Network Analysis of the American Federal Judiciary, 71 Ohio St. L.J. 457 (2010).

Salmon A. Shomade & Roger E. Hartley, The Application of Network Analysis to the Study of Trial Courts, 31 Just. Sys. J. 144 (2010).

Some attorney appearances began as early as 2000.

For an entry to be considered a duplicate record, the MDL number and attorney email had to be the same, even if the name was slightly different. Attorney names vary considerably (for example, one time an attorney’s middle initial is used, and one time it is not). A common correct version of the attorney’s name was created with as much information as possible (full first, middle, and last names, if available) to ensure that the same attorney was referred to the same way. One attorney may have more than one email address. We estimated both the highest number of appearances for a single email address and the highest number of appearances for all email addresses with the same name. The results did not differ substantially across the two measures.

Some attorneys appeared as early as 2000 in proceedings centralized beginning in 2001.

The JPML divides its docket into ten different types of proceedings. Air crash and common disaster are not included in Figure 3 because none of the 19 attorneys appeared in those types of proceedings.

The names of plaintiffs’ attorneys have been excluded to eliminate any concern that our research is targeting individuals in the MDL process. But cf. Willging et al., supra note 26, at 196.

It was also somewhat noteworthy the number of named partners that appear in this list. In most cases, these are rather small firms.

Our discussion of centrality measures comes from the following: Linton C. Freeman, Centrality in Social Networks Conceptual Clarification, 1 Soc. Networks, 215 (1978).

The one exception was closeness; three of the top five scores were obtained for attorneys not appearing on either of those lists. Of course, the cut point for these lists excluded attorneys with many appearances.

Myriam Gilles, Tribal Rituals of the MDL, 5 J. TORT LAW 173–180 (2012), doi 10.1515/jtl-2014-0009.

In short, the data being analyzed were not initially generated to accurately identify when, precisely, an attorney became involved in a proceeding.

Margaret S. Williams & Tracey E. George, Who Will Manage Complex Civil Litigation? The Decision to Transfer and Consolidate Multidistrict Litigation, 10 J. Emp. Legal Stud. 424 (2013); Eldon E. Fallon, Jeremy T. Grabill, & Robert Pitard Wynne, Bellwether Trials in Multidistrict Litigation, 82 Tulane L. Rev. 2323 (2008).

Chances are, at least one plaintiff attorney was participating in the litigation early on but a formal appearance was not important in that situation.

Richard A. Nagareda, Restitution, Rent Extraction, and Class Representatives, U.C.L.A. L. Rev. 1483, 1488 (2006).

Richard A. Nagareda, Class Actions in the Administrative State: Kalven and Rosenfield Revisited, 75 Univ. Chi. L. Rev. 603, 628 (2008).

Id.

See, e.g. Robert H. Klonoff, The Decline of Class Actions, 90 Wash. U. L. Rev. 729 (2012) (concluding that the class action is no longer viable in many areas of the law).


Citation Information: Journal of Tort Law J. Tort Law, ISSN (Online) 1932-9148, ISSN (Print) 2194-6515, DOI: https://doi.org/10.1515/jtl-2014-0011.

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