by Emily B. Ashe
Length of Time
If there’s one thing we all know, lawsuits can take a long time. One of the down sides for a mass tort client is that their case generally takes a number of years to resolve (they benefit in other ways such as sharing costs with other plaintiffs—I’ll get to that below.) My recent experience with individual cases showed me how much shorter the timeline can be for those cases. In my short exposure to individual cases, I’ve seen a number of cases resolve. On the other hand, mass tort cases that began before my time at my firm (which will be four years as of the publication of this article) are still pending. I’ve also seen one-off cases resolve before we had to dig in our heels and spend a lot of money. When there’s only one case to focus on, the parties often have a greater grasp of the strengths and weaknesses and the case can be resolved much more expeditiously to the benefit of the client.
The discovery process, particularly in an individual case, is simply something they cannot teach you in law school. Each case requires a different approach depending on the nature of the case and your end goal. As I changed my focus from mass torts discovery to individual case discovery, getting adjusted to the discovery process in individual cases was probably my biggest challenge. In the mass tort world, I was spoiled with the simple plaintiff and defendant fact sheet process, which was essentially a short, previously agreed upon questionnaire. Besides the occasional case management order, the fact sheet is the extent of the discovery in a mass tort case (unless one of your cases is picked as a bellwether or trial case and then all bets are off). Nevertheless, I’ve had to make different adjustments based on each particular individual case as there is no fact sheet to rely on. Sure, there may be sets of uniform discovery but that’s just skimming the surface of the discovery process. To get below the surface, you have to dig much deeper. This usually means starting from scratch and sitting down to outline what information you need from the client and what documents you need to make your case.
Discovery is not simply handed to you on a silver platter—you have to put effort into going out and getting it for yourself. By way of example, I recently began investigating a new case regarding an automobile. The car was old and we were not having any luck with the department of transportation to get initial title records (side note if you are ever in the same situation: apparently in Pennsylvania vehicle titles that are over five years old are purged from the system; titles that are five to 10 years old are transferred to microfilm; and anything older is pretty much impossible to get). After three failed attempts, I ended up making a visit to inspect the vehicle for a completely unrelated reason. Lo and behold, as I was inspecting the vehicle, I noticed a dealership logo on the rear bumper which led me to find the information I was looking for! I think this is a great example of how unconventional discovery can be in an individual case.
Intimacy With the Client
One of the challenges that I face in mass torts is creating an individualized relationship with the client as you could have hundreds of clients spread across the United States at any one time. In an individual case, you have the distinct privilege to have a closer relationship with your client. This is likely more feasible in one-off cases due to their location and your ability to focus all of your efforts on their particular case. In my experience, discovery in an individual case is also much more detailed and personal and because of that you can’t help but learn intimate details about your client, which lends itself to creating a more personal relationship. Unlike a mass tort client, it pretty much goes without saying that your client or their representative will be required to testify in a deposition or in court. So while it’s much less common that I ever meet a mass tort client in person, it’s pretty much guaranteed that I’ll meet an individual client. In fact, I would say over the years I could count on one hand the number of mass tort clients I’ve actually met in person. This naturally relates to the landscape of the lawsuit itself, and the fact that many of my mass tort clients are located on the other side of the country. In my individual cases, my clients are generally located nearby. Based on the proximity and the likelihood that the client will need to appear for a deposition or to provide testimony at trial, I’ve met nearly all of my individual case clients.
As another side note, I’d probably say this is one of my favorite parts about working on individual cases. I’m a people person and I really like being able to put a face to the name by meeting with my clients and getting to know them on a more personal level.
In addition to knowing that lawsuits take a long time, we also know that it’s not cheap to bring a lawsuit. While mass torts and individual cases are both quite expensive, there’s one really big difference between the two. In a mass tort case, the cost of any common benefit work done on behalf of all plaintiffs is spread out among them. In an individual case, there’s generally no other party to share the costs with. This makes it of the utmost importance to constantly monitor the costs of your case so as not to spend more than the case is worth.
The Trial Process
Many people are unfamiliar with the mass tort trial process. A trial in a mass tort case is referred to as a “bellwether trial.” A bellwether trial is essentially a test case for the rest of the plaintiffs to determine the likelihood of success should all the plaintiffs try their cases. In selecting the bellwether case to be tried in a mass tort, each side usually gets to nominate cases they believe are representative of their side, and then the judge ultimately chooses which case goes to trial. The verdict in a bellwether trial is only binding in the case that was actually tried, but the hope is that it sets a trend and allows the other cases within the mass tort to resolve. In an individual case, you don’t have a choice which case to litigate and you have to work with the cards you are dealt, whether they are good or bad. This means you really have to put the time in before you accept and move forward with the case to decide if this is a case you would be willing to take to trial.
Curated for Ventura Law