What "Erin Brockovich" Failed to Tell You about the Realities of Class Action Litigation

Article excerpt

Mass tort litigation is inherently complicated. It is no wonder that more and more people are turning to various ADR processes to help them settle claims. And yet there are many others who don't realize the magnitude of the problems facing them when they file a class action. If they were to believe Hollywood, all it takes is a good-looking counsel or advocate (think Julia Roberts in "Erin Brockovich" or John Travolta in "A Civil Action") to win a thorny courtroom battle. Not so, according to this article by Geoffrey Parmer, which dissects the key issues involved in class action litigation. Parmer strips class action litigation of its Hollywood-inspired glamour and exposes the myths perpetuated by movies and books.

Class action litigation has been romanticized by such movies as "Erin Brockovich" while being simultaneously vilified in the press as nothing more than a cash cow for unscrupulous attorneys.

Lawyers might spend an afternoon daydreaming of when the "perfect" client will walk through their door with the class action case that will make them a millionaire. The reality, unfortunately, is that the glamour, and sometimes the financial rewards, never follow the Hollywood script. The day that the "perfect" client walks into your office might mark the beginning of a series of pitfalls and financial disasters which could ruin a law practice.

The litigation of mass tort claims requires planning and foresight. More important, it requires a commitment by the attorney to assume a substantial financial risk. This article will provide a broad overview of issues which may arise in class action litigation.

The Client

One might think that finding the right client is half the battle in class action litigation. In actuality, it is not even one-tenth of the battle which will most likely follow. The first problem that may arise could be easily overlooked by an attorney excited by the prospects of a potentially huge case.

After hearing a client describe what the attorney believes is the perfect class action, the rush to file the case may leave certain ethical considerations behind. Every attorney knows that he or she is ethically bound to follow the wishes of the client.1 The determination of what the client's wishes are may not be as cutand-dried as one might think.

In the context of seeking legal counsel, the layperson will rely heavily on the advice given by the attorney. It is sometimes the case, whether consciously or unconsciously, that an attorney will guide the decisions of the client through the presentation of legal issues and opinions. Without explaining to the client the differences between an individual lawsuit and a class action, it is impossible to truly determine what the wishes of the client are.

Failing to fully explain the option of an individual suit versus a class action could be problematic for the attorney if the client is asked at deposition why he or she decided to file the case as a class action rather than an individual case. The client's lack of a meaningful response will provide ammunition for defense counsel, and can raise questions in the client's mind as to his or her own attorney.

The solution is to fully educate the client as to the differences between the two types of cases to insure that the decision is truly the client's. A client who does not have the desire to engage in protracted litigation and desires a quick resolution to a claim will ultimately backfire as a class representative.

The need to educate the client about the legal issues involved in class action litigation is not solely for the benefit of the client's understanding. Federal Rule of Civil Procedure 23(a)(4) requires that the class representative "will fairly and adequately protect the interests of the class." The purpose of this requirement is to provide some safeguard to insure that the interests of absent class members are protected by the representative party or parties. …