As a former mass tort defense lawyer, I read with some interest a recent article by Jon Campisi and Alleeza Furman entitled The World’s Highest-Grossing Law Firm Is Investing in Mass Torts Defense. It’s Not Alone.

The gist of the article is that large law firms (think AMLaw 100) are becoming more interested in mass tort defense as evidenced by Kirkland and Ellis bringing in some 100 litigators. The authors suggest this expansion reflects a growing demand particularly in the areas of mass torts and product litigation.

The authors also note a shift from commoditized products work where rates are compressed and predictable settlements to more high stakes, bet the company cases. Which in turn means higher rates, higher bills and more profit for law firms. So the theory is that these developments have attracted the interest of the large firms.

Historical Mass Tort Defense

The idea is that these kinds of cases, which was the type of cases I typically handled for most of my career, require a different skill set and more innovative strategies since so much is at stake. These are the kinds of matters that, if not handled correctly, could impact a companies stock price, its brand reputation and, for that matter, sales. And the lawyers on the other side were usually highly skilled and remarkably innovative themselves.

It was just these arguments I used to convince clients to hire me as an experienced mass tort lawyer. The cases did indeed require a different skill set and perception. As with everything, experience in previous matters was valuable. Being innovative and strategic was critical to successful handling. Plus, the ability to leverage technology to handle multiple claims in multiple venues was helpful and sparked a lifelong tech interest.

A Shift

But the pendulum of how these cases were managed shifted over the course of my career. At the beginning, the actual maker of the product by and large controlled the litigation and recognized the impact adverse verdicts and publicity could have on both stock price and reputation. As a result, they were willing to hire and pay for a sophisticated defense. Over time, the litigation became more and more controlled by insurance companies that had different priorities. The carriers squeezed rates and constrained how the cases were handled. 

These companies didn’t so much balk at hiring high end lawyers to do what they were good at. But they disliked paying large firm rates for the grunt work in the case. There is a tremendous amount of work that needs to be done in a mass tort matter that doesn’t require the skill and experience of a sophisticated mass tort lawyer. This grunt work was time consuming, distracting and expensive. And the carriers pushed back, demanding lower rates and increased management of the cases across the board. 

Is the Pendulum Swinging Back?

But things change and the pendulum may be swinging back the other way for several reasons. One new factor is technology. Much of the grunt work can now be done by technology, leading to decreased costs and ensuring clients don’t have to pay high end rates for work that either high priced lawyers or legal professionals don’t need to be doing. By and large, the bigger firms have the better technology and infrastructure to make this happen.

In fact, towards the end of my career, I proposed splitting out this lower end work and either doing it for a flat fee or sending it out to an alternative legal services provider. The idea was that I would keep the work for which I was uniquely qualified and charge appropriately for it. Today, technology makes this kind of workflow easy to accomplish.

The Impact of Technology

There are other factors at play as well. Technology has enabled plaintiffs’ lawyers to actually bring and manage more cases as I have discussed before. Plus the ability of technology to ferret out claims across the country, compare those claims with one another and craft a nationwide litigation strategy results inevitably in more claims. What once would have taken weeks if not months and was prohibitively expensive, can now be done in seconds at a fraction of the cost.

Added to this, the threat of “nuclear verdicts” has turned run of the mill product claims into mass tort claims. In the past, the value of a standalone product claim may not have justified the time and energy to bring mass claims. No more.

Other Factors

The authors of the Law.com article cite some other factors that are equally important. There’s more mass tort litigation than ever as new products and new theories continue to emerge. Second, there’s still a backlog of litigation due to Covid. More supply means increased demand which in turn makes the work more profitable. Third, the authors point out that plaintiffs’ lawyers have increased marketing and advertising tools. And fourth, litigation financing has fueled the filing of new and more mass tort claims.

Value Attracts Attention

So yes, bigger firms are perhaps more interested in mass tort defense work as of late. But as one of the plaintiffs’ lawyers interviewed in the article noted, larger law firms have historically played perhaps an out sized role in mass tort defense. That was certainly my experience. The difference now is that mass tort work has become more valuable to those large firms. So, it’s more sought after—and the players better compensated. 

And that, of course, attracts Biglaw’s attention.