Vanderbilt Law Review
Mass tort, mass tort litigation, fees, mass tort plaintiffs' practice, lawyer-client conflict
Rather than focusing on the differences between tort lawyers and activists as they ally with each other, this Article focuses on the motivations and explanations of the tort lawyers themselves. Positioned at the intersection of big-money practice and social change litigation, mass torts provide a useful study in multiple motivations. While financial incentives for plaintiffs' lawyers explain much of what happens in mass torts, policy objectives come into play as well, at least in the lawyers' rhetoric. Despite the obvious difficulty distinguishing reasons from rhetoric and rationalization, it is worth exploring the significance of mixed motives for lawyers who are committed to both policy objectives and the potential for large fees. Part I of this Article explores the possibility of multiple motivations of mass tort plaintiffs' lawyers, as well as the alliances among activists and trial lawyers that have emerged in several recent mass torts. Part II addresses the conflicts of interest that arise when considerations other "than maximizing clients' recovery motivate lawyers. While such conflicts exist, a mix of monetary and policy motivations may reduce, rather than exacerbate, the lawyer-client conflicts that inhere in mass representation. In mass collective representation, mixed motives more accurately reflect the combined interests of groups of similarly situated individual clients. Part III turns to questions of professionalism, the prevailing conception of public interest lawyering, and the possibility of serving the public good while pursuing private gain. The standard conception of public interest law practice, although rarely articulated with precision, tends to focus on market-undervalued legal work. While this definition makes sense for determining whether certain legal work ought to be subsidized, the prevailing conception may have an unintended consequence once internalized by lawyers and law students. Paradoxically, the prevailing conception of public interest lawyering may discourage lawyers in most of their work from considering the public good. In this sense, a vision of professionalism that acknowledges the possibility of significant private gain while serving the public interest may better serve the profession. On the other hand, self-serving bias may influence lawyers to view their own fee-generating work as public-serving. The benefit or harm of a broader understanding of public interest law practice depends on the extent to which, when lawyers perceive themselves as serving the public interest, they merely have persuaded themselves of the goodness of their own pursuit of wealth. Mass tort plaintiffs' practice, situated at the crossroads of public law and private tort litigation, combines notable public policy objectives with unmistakable fee potential. Because it presents mixed motives for lawyers more palpably than most other areas of practice, it offers a useful starting point for thinking about fee-generating work in which lawyers seek to advance the public interest.
Howard M. Erichson,
Doing Good, Doing Well Symposium, 57 Vand. L. Rev 2087
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/375