Chapter 3 · The On-Ramp
Three Ways to Participate in Mass Torts
Generally speaking, there are three different types of mass tort lawyers in the world: trial lawyers, acquisition lawyers, and settlement lawyers.— Jacob Malherbe, X Social Media
For far too long, the field of mass torts has been unfairly typecast as an ultraexclusive members-only club, which lies beyond the reach of outsiders who’d like to join the fight.
But let it be said that this is simply not true.
One of the central aims of this book is to debunk that pervasive but ultimately erroneous myth. Take it from someone who has made the transition himself: If you have the aptitude and desire to become a mass tort lawyer, there are more opportunities and potential on-ramps to enter this field today than ever before.
I know scores of mass tort converts—former personal injury lawyers, criminal lawyers, family practice lawyers, disability lawyers and many others—who’ve enjoyed successful transitions because they recognized one essential fact: Not all mass tort lawyers are trial lawyers.
While we certainly need mass tort trial lawyers to join the crusade, there are other ways to establish yourself in mass torts, including some pathways that can be achieved with surprising ease and minimal financial risk.
Simply put, it’s not too late to make the turn. Many lawyers tend to slide, almost involuntarily, into their fields after law school. Often their career paths are dictated for them by whoever happened to walk into their office when they first set up shop. Sometimes, early opportunities calcify into long-term careers, even if they might be happier—and better equipped—to work in a rapidly expanding field like mass torts.
When I consult with lawyers, I often recount a rather touching human-interest story that has long stuck with me. It was about an elderly woman who found herself, very late in life, sitting before a piano at her nursing home. She’d never been given an opportunity to play the piano very much, but when she sat down, fingers pressed against those keys, it became abundantly clear to everyone that she was a musical prodigy.
She was a born virtuoso. Every time she sat down to play, she became a conduit for pure beauty, which not only made her happy but offered up a very special gift to the world.
I mention this story because I know that there are lawyers reading this book right now—bankruptcy lawyers, social security lawyers, family lawyers, personal injury lawyers—who would not only excel within mass torts but would find it personally fulfilling to give victims an opportunity to find justice.
That’s the keyword for this chapter: opportunity. Believe me when I tell you there is an opportunity out there just waiting for you to seize it, provided you understand the different pathways available to you.
I want to make things as simple as possible, so let’s break things down this way:
Generally speaking, there are three different types of mass tort lawyers in the world: trial lawyers, acquisition lawyers, and settlement lawyers.
Ensuing chapters, written by individuals who’ve adopted these different approaches, will offer insights as to what you need to be successful in these disciplines. But I feel it’s important, right off the bat, to give you a sense of what each of these lawyers do so that you can decide which path is best for you.
Mass Tort Trial Lawyers (a .k .a . TieOne Lawyers or Co-Counsel) There’s no doubt, as Mike Papantonio has so artfully pointed out, that trial lawyers are the driving force—the essential catalyst—behind every successful mass tort campaign ever waged.
They are, to borrow a sports metaphor, the quarterbacks of the courtroom . They originate cases, forming and overseeing an overall litigation strategy. They find clients, often with the help of outside vendors, then submit those clients to what we call an MDL, a multidistrict litigation, making sure they meet every deadline and comply with all rulings and obligations.
Trial lawyers are, to borrow a sports metaphor, the quarterbacks of the courtroom. They originate cases, forming and overseeing an overall litigation strategy.
Trial lawyers take mass tort cases from the starting gate to the finish line, which is what makes them such a rare breed. They are responsible for studying and absorbing the scientific, medical, or engineering principles at the heart of every case. And they are charged with making even the most opaque of findings understandable to their audiences.
They must then communicate those findings in such a way that everyone in the courtroom—and beyond—understands what victims have experienced, how a product caused a particular injury, and why a particular settlement should be reached.
Research. Depositions. Discovery. Litigation. Settlements. They do it all—post to post—and must often do so on a national scale by carefully knitting together the stories of thousands of victims into a series of airtight cases. Should they fail to prevail, everyone will walk away empty-handed. Thus, it’s a job few people know how to do—and even fewer know how to do well.
Just like an NFL quarterback, successful trial lawyers often receive the lion’s share of the glory after a successful case has ended. In most standard mass tort contracts, clients agree to pay trial lawyers anywhere between 33 and 40 percent of their settlements in the form of attorney’s fees. But few could argue that their dedication and expertise isn’t worth every penny.
Few trial lawyers ever make it to the top of the mass tort mountain, which is why specialized schools have been established to cultivate a new generation of skilled trial lawyers. They are always needed, as we need fresh talent to litigate future cases.
Mass Tort Acquisition Lawyers I recommend that the vast majority of lawyers—perhaps as high as 99 percent—who enter the mass tort field become “acquisition lawyers.”
I’ve chosen to use the term “acquisition lawyers,” although it’s not uncommon for these lawyers to be called “referral lawyers,” “advertising lawyers,” or “tier-two lawyers” (tier one being trial lawyers) as well.
As the name implies, acquisition lawyers “acquire” cases and then refer them to mass tort trial lawyers. They find, sign, and vet clients who’ve been injured as the result of a particular product or medication. They then hand over this bundle of clients to trial lawyers, who take over the long-term responsibility of trying cases within the MDL, all while keeping up with statutes of limitations. As a result of accepting this inflow, the overall stable of clients for the mass tort improves.
Freed from having to try these cases or pay up-front research costs, acquisition lawyers possess extraordinary flexibility to decide which clients to pursue and when to pursue them—whereas most trial lawyers must enter into a mass tort very early in the process.
Prior to new technological innovations, like the ones we employ at X Social Media, being an acquisitions lawyer was generally a difficult task, as finding clients required a great deal of legwork and personal connections.
However, as I briefly outlined in chapter 1—and will detail in future chapters—we helped turn that paradigm on its head. Today, both acquisitions lawyers and mass tort trial lawyers simply contact X Social Media, tell us which types of clients they’re looking for, and we find leads for them. We do this by generating ads, slipping them into the Facebook feeds of people who are likely to be strong clients, and then creating landing pages to ensure these potential clients will qualify for the tort in question.
After we find these clients, we can direct acquisitions lawyers to outside intake and call centers, which can further vet their clients for eligibility. As we will further document, we have also thoroughly streamlined the screening and retainer sign-up process to ensure it is plug and play as advertising to find clients.
As you might imagine, these services have dramatically reduced the risk, time, and cost required to be a successful acquisitions attorney. This is a game changer because acquisitions lawyers receive as much as 50 percent of the fees earned by trial lawyers simply by finding clients and handing them over. Nothing more is required.
If, as noted previously, a standard mass tort contract provides a trial attorney 33 to 40 percent of a client’s settlement, acquisitions lawyers receive a smaller fraction of those fees. Usually acquisitions lawyers earn 40 to 50 percent of that mutually agreed upon attorney fee with the remaining 50 to 60 percent going to the trial lawyer who accepted the referral. All in all, however, acquisitions lawyers recoup an impressive number of large settlements, especially given they have no responsibility to try any aspect of the case.
Settlement Lawyers There is a third type of mass tort lawyer worth noting, which we will refer to as a settlement lawyer. Generally speaking, settlement lawyers are very experienced in the field—with at least ten to twenty MDLs under their belt. They are responsible for finding and signing up clients just like acquisitions lawyers, but they stop short of immediately signing a formal agreement with the co-counsel. Thus, they retain their own clients instead of quickly handing them off.
Settlement lawyers must possess the experience needed to work up their own cases and ready each potential settlement themselves. They often submit these cases to a multidistrict litigation only if a statute of limitations is becoming problematic.
As to be expected, there are both pros and cons to this strategy. Settlement lawyers are forced to absorb the very same up-front costs as trial lawyers. But they hedge their risks by cultivating close relationships with lawyers who are working directly on the mass tort in the courtroom, while carefully tracking the direction the mass tort is headed.
Settlement lawyers must possess the experience needed to work up their own cases and ready each potential settlement themselves.
Their experience—especially when it comes to monitoring and addressing any and all statute of limitations issues—allows them to wait until the last possible minute to hand over their stack of clients to their co-counsel, who is willing to settle their worked-up cases. By waiting, they earn larger attorney’s fees than acquisitions lawyers.
As previously noted, acquisitions lawyers tend to pay trial lawyers 40 to 60 percent of their attorney’s fees. Settlement lawyers, by contrast, can slice and dice that “cut” down to just 15 to 25 percent. This approach takes skill and experience but can pay off if you play your cards and cases shrewdly.
The Architecture of a Typical Mass Tort Case In order to determine which pathway will be best for you, it’s important to understand the essential framework of a typical mass tort.
Let’s start at the beginning. The vast majority of mass tort cases are born from new research or an unexpected scientific discovery. Most of the time, these early findings aren’t eureka moments. Rather, they offer evidence that a product may pose harm to a particular group of people.
It usually works like this: Trial lawyers monitor FDA adverse event reports to keep track of new studies. In other cases, a rather intrepid group of third-party researchers notices a potential danger embedded within a product or medication. Curiosity sets in, and they decide to investigate it further.
A study is launched. Data gets screened and crunched. Conclusions are formed, and then it’s published for the world to scrutinize. These findings can, if nothing else, raise early alarm bells. Suddenly, a question mark replaces what had been a period. Declarative sentences become interrogative ones. “This product is safe” transforms into “Is this product safe?”
Consider a product like the heartburn-reliever Zantac, which has been sold for decades and used by millions of unsuspecting acid-reflux sufferers across the globe. Suddenly, as it did in October 2019, new research comes to light suggesting—but not proving—that Zantac may put some users at higher risk for developing cancer.
Think about the barrage of additional questions these findings raise: Is there proof of direct correlation? What’s the actual risk of taking the medication? Are some users more likely to develop adverse reactions than others? And if there is a risk, are there specific types of cancers that are more likely to develop for those who’ve used Zantac?
These early whistleblowers rarely receive the credit they so richly deserve, given the inherent risks that come with challenging the safety of a billion-dollar product. But their courage in conducting their research is vital, as it can compel the FDA to take notice of a potential issue and conduct its own studies.
It’s at this point that experienced mass tort trial lawyers begin vetting the data themselves. If they sense a strong case is taking shape, they seek out potential clients immediately by partnering with advertising specialists like my company, X Social Media.
It stands to reason that the earlier a firm hires us to find new clients via our Facebook advertising model, the larger the pool of potential new clients will be. Think of our service like a funnel. Clients feed advertising dollars into the funnel, and valuable clients come out of the other side. It’s really that simple.
We’ll deconstruct, in full detail, how we dramatically reduce the costs and improve the efficiency of finding mass tort clients in chapters 9, 10, and 11. But as any mass tort lawyer will tell you, finding clients quickly, efficiently, and inexpensively is an essential step in any campaign.
No clients equals no cases.
A larger quantity of quality clients leads to bigger settlements.
It’s that simple. But it’s also important for outsiders to understand some of the key phases that typically occur in a mass tort case once it gains steam.
Acquisitions lawyers are often slower to commit to finding clients because they know that new research findings will inevitably emerge. Let’s return, for example, to the Zantac case. Just because a whistleblower finds a potential connection between a medication and cancer doesn’t mean that the FDA will find the same correlation. And should the FDA find correlation, the question becomes what type of signature cancer does Zantac tend to produce in victims?
By sitting back and waiting for additional research to come to light, they can narrow down their search and find clients who align perfectly with the particular criteria established by the FDA.
That was certainly the case when the FDA completed its study of Zantac, which it promptly removed from the market in April 2020 over fears the drug might cause stomach, colorectal, and intestinal cancers.3
At this point, the trial lawyers who’d already contacted us found themselves well ahead of any acquisitions lawyers, as we quickly refined our search to find Zantac users who had developed these particular cancers. These refinements and retargeting strategies can be performed immediately, thus giving our early clients first dibs on finding the strongest clients. By locking in on the right criteria early on, we can cut the costs of amassing leads by roughly half compared to those who arrive later on.
The FDA’s announcement regarding Zantac did, however, motivate acquisitions lawyers to join the tort midstream. They quickly turned to us to find clients for them as well. This ultimately benefited the entire tort as it unearthed another wave of strong clients who can be added to the mix.
It’s worth pausing here to highlight, once again, two acronyms that are essential to understanding mass torts moving forward: multidistrict litigations (MDLs) and plaintiff steering committees (PSCs).
An MDL is the lynchpin of any mass tort case. MDLs make the process of trying hundreds or thousands of individual cases more efficient by centralizing them all into one courtroom, as opposed to bogging down dozens of individual state courts. Within an MDL, plaintiff-side lawyers and defense lawyers each pick six bellwether cases, which will ultimately determine which side proves victorious.
Naturally, plaintiff-side lawyers want to put forward the six strongest cases they can, while the defense will nominate the six weakest cases, which is why it’s so critical for every mass tort client to be thoroughly vetted.
Always remember this: Mass torts are only as strong as their weakest individual client/case. Should an inexperienced acquisitions lawyer slip a flawed case/client into the MDL, it can spell trouble because the defense will choose that case to be its bellwether and try to prove that the science doesn’t support that the product in question poses a real danger.
This is why it’s so important to have exceptional trial lawyers spearheading the MDL. And it’s the reason why vendors like us and our trusted call center partners are so essential to the overall process. We refer our clients to the best co-counsels available, especially those who have assumed leadership positions in the MDL. Over the years, we have developed strong relationships with the vast majority of the most respected mass tort trial lawyers working today. All it takes is a simple introduction email from us to foster new relationships.
Thus, we are the silent but important force that upholds the integrity of the MDL by screening out potentially bad cases that might blow it all up.
It’s important to note that a select number of very seasoned trial lawyers are assigned to something called a plaintiff steering committee (PSC). Invariably, judges choose the most experienced and wellrespected plaintiff-side firms to be members of the PSC because they have a duty to ensure that every MDL is evenly matched between plaintiffs and the defense.
There are, by my estimation, roughly forty to fifty seasoned mass tort law firms in the country that possess the experience, talent, and resources to be members of a PSC. But earning that position comes with some noteworthy advantages.
Not only do PSC members direct the case but they can bill their work at an hourly rate to the MDL. If a judge approves their rates and workload, these fees will be reimbursed from the attorney’s fees of all the clients in the MDL. The results can be lucrative, as evidenced by the BP oil spill, which awarded the firms in the PSC over hundreds of millions of dollars for their work.
Once the MDL is established and the members of the PSC are appointed, the trial proceeds pretty much as you’d expect. More scientific findings come to light, which can aid or hinder either side. Expert witnesses are called to the stand and cross-examined by both sides, which leads to some bellwether trials being decided.
This is the next hinge point in a typical mass tort case. Should the verdict in these early bellwethers go to the defense, things take a dark turn for the plaintiffs. But should early wins arise for the plaintiffs, the risk of joining this tort is greatly reduced and everyone rushes to add as many last-minute qualifying clients as possible.
The cost of locating new clients goes way up at this point, as we’ve likely found most of the best potential new clients already. Which begs the question: Where can additional clients be found this late in the process?
Sitting with the settlement lawyers, of course, who’ve been patiently holding out for the assurance that the MDL is going the plaintiffs’ way. As the number of plaintiffs rises once again, it applies extra pressure on the defense.
At this point, the defense really only has two options: Settle with plaintiffs, take a loss, and wrap things up. Or take the risk of allowing all the cases to go back to individual state courts. The defense usually doesn’t want that, given the expense required to litigate in fifty different states with fifty different attorneys. But in most cases, the plaintiff lawyers don’t want to go to state courts either as that would require sending plaintiff-side trial attorneys to each state as well.
Thus, you can understand why settlements are often struck. By not striking a deal, both sides would have to litigate across the country in as many trials as needed. Which costs everyone a lot of extra time and money. Better to reach a mutual agreement, allow everyone to go their separate ways, and most important of all, provide some modicum of relief to victims who have unduly suffered due to taking or using one of these products.
The Benefits of Vendors Based on this simple outline, you should be able to gauge which of these three roles—trial lawyer, acquisitions lawyer, or settlement lawyer—is best suited for your particular goals and skill sets. Regardless of which path you pursue, rest assured there are legal service vendors who can help you locate clients and navigate any potential pitfalls in delivering justice for your clients.
That is to say, you are not alone. I can point you to plenty of lawyers, with no mass tort experience whatsoever, who simply possessed the courage to reach out to one of us and say, “I want to help, but I don’t know where to start.” And then, lo and behold, our whole community stepped up to welcome them into the fold.
We do this every single day at X Social Media. Someone sends us an email that says, “I’m looking for a good co-counsel to partner with. Any suggestions?” And then we facilitate those connections. Someone else might reach out and say we want to find an intake center. Trusted referrals are sent out instantly. Someone else might need help improving the search engine optimization (SEO) on their website or handling lien resolution issues or dealing with a business that has gone into bankruptcy. Done. We have names. We can connect you because we’re all part of the same network and same plaintiff matrix.
Those of us on the plaintiff side understand the vital importance of banding together to achieve a greater good. There are no secret cliques. There are no hidden agendas. There are no cordonedoff spaces that require special entry. At X Social Media, we can say, without blushing, that we’ve played a role in helping hundreds of thousands of victims of corporate greed find some modicum of justice, but we all know there is more work to be done. Year after year, new fights emerge. And it’s only by joining together—by increasing our strength and talent pool—that we can continue to make a difference and maintain balance on the scales of justice.
Notes
3 Matt Dolman, “What Kind of Cancer Does Zantac Cause?” Sibley Dolman Gipe, June
1, 2021, https://www.dolmanlaw.com/cancer-type-zantac-cause/.