The Ethics Behind Mass Torts Michael Chhabra | MichaelChhabra.com
OVERVIEW THE MACHINE OF TORT LAW There are a lot of cogs in the machine of tort law. Between a large number of plaintiffs, defendants that may consist of groups representing sizable corporations, and legal counsel for both sides, there are inevitably many individuals involved. Given that rules for ethics largely pertain to single plaintiffs and single events, navigating a mass tort can be daunting for law firms.
TRANSPARENCY IS KEY COMMUNICATE WITH CLIENTS As with many other issues, transparency is key. A small minority of mass tort cases make it to trial, with many settling out of court beforehand. In this case, a lawyer must communicate with every single one of their clients and disclose the amount that they would receive in the event of a settlement. For that matter, differing levels of severity among victims in mass tort cases can make the questions of figuring out compensation all the more difficult. It’s up to lawyers to avoid any conflicts of interest here by ensuring that they serve each client equally effectively, regardless of the perceived value of their individual cases.
AVOID POTENTIAL CONFLICT
AGGREGATE SETTLEMENT
Indeed, attorneys are prohibited from representing any client is there is a potential conflict of interest unless the client in question provides written consent. For mass tort cases, this requires consent on part of every client involved indicating that they are aware of other clients.
These cases can result in what is called an aggregate settlement in which the defendant pays out a sum intended to be distributed among plaintiffs. All claims must disclosed and all clients consenting. Compounding this is the fact that dozens or hundreds of attorneys can represent plaintiffs in a mass tort, each with the same processes to undergo
CLASS-ACTION SETTLEMENTS AGGREGATE SETTLEMENTS Aggregate settlements are not easy to resolve in their own right. Class-action settlements can be divvied out in a consistent manner determined by the court and every plaintiff is assumed to have similar or equal damages. With tort cases, damages may not be equal among all plaintiffs involved.
DISTRIBUTING A SETTLEMENT AGGREGATE SETTLEMENTS This creates the challenge of having to work to figure out a system for distributing a settlement among them. While it would be ideal to resolve a mass tort on an individual basis, this is simply not practical. It comes down to the defendant to lay out terms of what degrees of injury might look like, doling out an aggregate settlement based on what they come up with. It then falls to lawyers and firms to distribute it to their clients. The more unambiguous the record of injury, the better—medical documents are a necessity for issues such as these.
CONCLUSION ACCEPTING THE SETTLEMENT In the end, clients should have all of the information that they need to make a sound decision on whether to accept a settlement, knowing the process behind which compensation is determined. It also falls to the lawyers and firms to not prioritize clients based on potential value and ensure fairness and respect for all.
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