The Democratization of Mass Actions in the Internet Age
Weinstein, Jack B., Columbia Journal of Law and Social Problems
The need for aggregate litigation is increasing as our society becomes more interconnected. Even as courts and legislatures contract the availability of efficacious class actions,1 demand for mass actions is rising. New procedures are developing to fill the gap.2 These changes will present new practical and logistical challenges.
For over sixty years, I have been intrigued by the issue of how much claimants in mass litigations should participate in their cases. A number of current conditions are putting pressure on our traditional notions of who controls litigation and how they do it. These conditions suggest revisiting the relationship of courts, attorneys, and plaintiffs to the mass actions brought on their behalf, as well as carefully examining how these actions are financed.
It is trite to say that the Internet and its various applications are profoundly affecting our lives. Examples from the Middle East "people's revolts" to domestic, sexual, and other social changes abound. In the law, a huge expansion of do-it-yourself online legal guidance,3 discovery burdens,4 and new research and notice capabilities are well known.5 These and other new technologies increase the potential for plaintiffs to directly participate in mass actions.
At the same time, alternative litigation financing - whether in such forms as loans to individual plaintiffs or plaintiffs' law firms or investment in lawsuits - is increasingly a reality of the legal world.6 As the availability of this kind of financing increases, it may become easier for plaintiffs to sue, equalizing the power to conduct suits between defendants - often large, wellfunded corporations - and small, individual claimants.
The question remains: Is more active participation in litigations by those with claims necessary in theory?7 Is it possible? Is it warranted? Is it desirable? What should courts do to monitor cases involving third-party financing, when those that pull some of the strings are not formally before the court?8
The judiciary, through its case management practices, as well as the legislature and the bar, have an important role to play in answering these questions.
II. TRADITIONAL REPRESENTATIVE MODEL
Our classic litigation model is republican-representative. The lawyer consults with, represents, and does the speaking for the client. Representation is paid for either by the client out-ofpocket, by an insurer, or as part of a contingency-fee arrangement.9
The representative nature of the traditional model is heightened in the context of aggregate litigation. Typically, in mass actions, most clients' input is minimal. They may have little contact with the attorneys in charge of the litigation, particularly if they are not named plaintiffs. They may have little knowledge of the strategy or status of the litigation other than through the receipt of the mailing of a class notice and an offer of recovery. As a result, those injured may feel left out, disaffected, and resentful.
Lack of involvement in the litigation may have other deleterious effects. Litigators are sometimes not candid with clients who have not retained them and may take advantage of those they will never meet. Concepts of fair fees, settlement negotiations, and other aspects of representation are not clear to most laypeople.
The fully democratic model of litigation is that of the pro se plaintiff. It does not work well. Pro se plaintiffs have substantial knowledge of and control over the litigation. But they often have difficulty understanding legal standards and marshaling the evidence necessary to meet those standards. This problem is compounded when their legal claims require proof involving expertise, such as when plaintiffs must establish causation of a medical harm by a particular drug. I have used a plaintiff steering committee to advise pro se litigants in mass actions,10 but I am not sure this is an adequate solution for lack of individual legal aid. …