All litigation—and lawyering—is teamwork. But multidistrict litigation (MDL), where individual mass tort cases and class actions are deemed similar enough to be combined for pretrial discovery and fact-finding, presents new opportunities and challenges for coordinating and crafting a team. In the largest MDLs, such as in the 3M earplugs case or the Johnson & Johnson talcum powder case, there might be 50,000 to 100,000 individual lawsuits. These larger MDLs dominate the landscape and are the reason, critics say, that MDLs take up almost three-quarters of the federal civil docket.
Still, because MDLs consolidate dozens of individually filed lawsuits, and all these suits were initially filed by plaintiffs with their own individually retained lawyers, MDLs give new pressure to the idea of teams and the power dynamics within them. While George, Gulati, and Yang’s article in this issue of The Practice, “Law Firm Deal Teams,” explores gender and ranking within law firm dealmaking teams as a way to understand power in the legal profession, MDLs offer a different lens on that same subject. Once lawsuits are combined, which lawyers are elevated to lead, and why? How is power distributed between the plaintiffs and the defendants? To shed light on this issue, we talk to Cari Dawson, a partner at Alston & Bird in Atlanta, who leads the class action and MDL practice group, and Nora Freeman Engstrom, a professor at Stanford Law, who studies complex civil litigation with a focus on plaintiff lawyering. Both show how MDLs crystallize power dynamics between litigants and lawyers in the American legal profession.
Consolidation
The Judicial Panel on Multidistrict Litigation (JPML) meets six times a year and decides whether to consolidate cases with similar factual bases, based on the allegations of either plaintiffs or defendants. Many of these cases concern product liability (more than 35 percent in 2023, according to Bloomberg Law), but others involve antitrust, intellectual property, and so on. If the JMPL chooses to consolidate cases into an MDL, it transfers pending claims to a single federal district court judge so that they can coordinate pretrial matters, including by selecting leadership counsel for the plaintiffs and defendants.
Engstrom calls such cases “complexity layered on top of complexity layered on top of complexity.” Part of this complexity comes from the internal intricacies of the cases themselves, which often involve latent harm and the application of disparate state law. But another big part comes from pure size. “Maybe you had 2,000 plaintiffs’ lawyers who had these cases, and now the cases are swept into an MDL and consolidated in front of this one judge,” Engstrom says. “One judge can’t have 2,000 plaintiffs’ lawyers in her courtroom. What is she going to do?”
On both sides, a steering committee is chosen to help streamline proceedings. While defendants often choose their own lead counsel, judges choose plaintiffs’ leadership, known as the Plaintiffs’ Steering Committee (PSC), to coordinate and quarterback the litigation on behalf of all of the MDL plaintiffs.
How can we be sure that the judge is choosing lawyers who will be excellent lawyers for all the plaintiffs?
Nora Freeman Engstrom, professor, Stanford Law School
Lawyers not chosen for the PSC are often called “sidelined lawyers,” Engstrom says. These sidelined lawyers may help “translate what’s happening in the case to clients to make it legible,” and they may also help document plaintiffs’ impairments, catalog their employment histories, or compile their medical records. But while these sidelined lawyers have a role, they are mostly bit players. “They are not the ones negotiating with the defendant, writing briefs, filing motions, or taking depositions. They really have been cut out of the action,” she says.
According to Engstrom, these leadership decisions have ethical implications. “The defendant has every incentive to pick lawyers who will be excellent advocates with undivided loyalty,” she explains. “But how can we be sure that the judge is choosing lawyers who will be excellent lawyers for all the plaintiffs?”
“Most of the lawyers tapped for the PSC,” Engstrom says, “were retained by individual clients, and so they have a typical traditional lawyer-client relationship with the clients who retained them, but now they have these other additional clients.” She asks: “Do the members of the PSC have the same duties to their legacy clients (for example, those that they are in a retention agreement with) and with everyone else?”
Plus, she notes:
Not all plaintiffs are alike. Not all have the same priorities or interests. Some plaintiffs might want a large monetary recovery. Some might want an apology. Some might want structural change. Some might care about transparency—about disclosing the defendant’s wrongdoing. Some might be indifferent to these disclosures. How are those conflicts supposed to be resolved?
Exacerbating these challenges, many MDLs never return to their home court—instead they are settled or dismissed. This means that PSC members are coordinating settlements with plaintiffs who never hired them to begin with (something that raises thorny issues under the Model Rules for Professional Conduct, as Engstrom explores in a forthcoming casebook).
Still, despite how the MDL sidelines certain lawyers and elevates others, it also changes the dynamics between the defense and the plaintiffs. As Engstrom says: “MDLs have the power to level the playing field between individual plaintiffs and big corporations.” For example, “if a client is seeking $4 million in damages, you simply can’t engage in $4 million of discovery in that case. The math doesn’t add up. Via consolidation, plaintiffs can pool resources and ultimately go toe to toe with their well-heeled adversaries.”
Experience and humility
Dawson regularly acts as lead coordinating counsel for MDLs and class actions on the defendants’ side. She joined Alston & Bird in 1994, diving headfirst into class actions and getting her feet wet in many of the skills and practices that MDLs would later require—working with other law firms on the defense, coordinating many witnesses and experts, and so on. Starting in insurance class actions and working with other defense law firms, she learned how to “persuade and influence” lawyers even when she was not yet in charge.
Today, Dawson is often in charge, and she has expanded her practice across a wide range of industries and defends a variety of class actions. She became chair of the class action and MDL practice group early in her career, when it was clear the “sheer volume of experience” she had gathered under mentors who recognized her potential meant she was ready, despite the presence of more-senior lawyers at the firm. Dawson points to her firm’s “inclusive culture” and willingness to recognize merit and experience over tenure length as significant in this move.
In order to be successful in an MDL, you must have a supportive client who trusts you and your judgment, is a clear communicator, and shares information with you.
Cari Dawson, partner, Alston & Bird
In 2010, Dawson was elevated to lead counsel for Toyota during its unintended acceleration MDL, where she showed that she understood how to both lead and be a team player. “I was not an expert in Japanese culture and the representation of Japanese companies, but I said to them, ‘I’m going to read every book. I’m going to learn everything.’” During the case, one of the most instrumental individuals on the team was Dawson’s paralegal from Japan. Despite her hierarchical rank on the case, Dawson remained deferential to the paralegal, something that surprised the staff. “Why would I act any other way?” she would ask. “You’re teaching me.”
Indeed, in a series of articles called Channeling Your Inner Olivia Pope, Dawson reflects on what companies need to work their way out of crises (which is what many product liability MDL cases are for companies). To manage a crisis, Dawson writes, “you will need a diverse, multidisciplinary team consisting of in-house and outside counsel, subject matter experts, and representatives from the relevant business units.” For instance, working on Toyota, Dawson had a team of more than 90 people from across “practice groups in eight different offices, spanned three different generations, and were approximately 60 percent women and 30 percent minorities,” she said in an interview with Diversity and the Bar, a publication of the Minority Corporate Counsel Association. Referencing the movie Moneyball, Dawson says their differences made them stronger.
As a team leader, Dawson says it’s important “not to make it all about you.” The client is the most important part of the team. “At the end of the day, me winning the MDL is not more important than Toyota maintaining and growing its market share, protecting its brand and reputation, rebuilding its trust with its customers, and having a good relationship with the American government,” she says. And, she adds, “in order to be successful in an MDL, you must have a supportive client who trusts you and your judgment, is a clear communicator, and shares information with you. It’s a trite saying, but it’s true: I routinely say to my clients, ‘Help me help you.’”
Experience and diversity
Dawson’s experience specializing early in defense work was critical for her success. On the plaintiffs’ side, Engstrom lauds the importance of such experience but cautions that selecting a PSC solely based on attorneys’ experience can have drawbacks. “All things equal,” Engstrom explains, “you’d rather be represented by a veteran than a novice.” Engstrom adds:
If you’re choosing who’s going to represent you in the Supreme Court, you’d rather have an oral advocate who’s argued dozens of times before. There’s evidence that folks who are really experienced Supreme Court advocates actually have somewhat better outcomes. There’s no reason to think that same principle doesn’t apply equally to MDLs.
But, Engstrom explains, basing PSC selection solely on experience can make it almost impossible for new attorneys to gain the experience necessary to lead the next generation of MDLs. Nor does it leave room for attorneys who bring fresh viewpoints and perspectives. This is a problem because, until recently, those tapped for PSCs have been strikingly undiverse. This lack of diversity can erode trust, affect decision-making, and ultimately impair the quality of representation. Overreliance on experience can thus render MDLs susceptible to further descent into “old boys’ club” territory.
How do we ensure that MDLs are led by those with both diverse viewpoints and necessary litigation experience?
Engstrom
In the past decade, scholarship has documented the diversity of MDL leadership. For instance, a recent Law.com article described how former judge of the U.S. District Court for the Northern District of California William Orrick asked lawyers in the Juul electronic cigarettes MDL to provide demographic statistics of who was working on the case. He was disappointed to learn that “of the 62 plaintiffs’ firms involved in the case, there were no Black or Hispanic lawyers working on the litigation.” In 2021, 16 percent of MDL leadership slates were nonwhite. In 2023, that percentage was only 11 percent. In a chapter on “Diversity in the Profession” in Engstrom’s forthcoming casebook, she points to similar dismal statistics for women in MDLs. “From 2011 to 2016, women comprised an average 16.6% of all MDL leadership appointments and 37% of MDLs had no women in leadership,” she writes.
Currently, when it comes to leadership appointments, judges have near-total discretion. Judges exercise this discretion in various ways: some ask plaintiffs’ counsel to propose a slate for the judge to accept; some judges choose those with the most experience or the most clients; some judges ask for applications. But as Engstrom points out in her casebook, there is evidence that judges, like Judge Orrick, are considering diversity more and more. “If you have a tort where the plaintiffs are overwhelmingly female, as is the case with vaginal mesh or breast implant litigation, for example, to have an all-male leadership team may be unsatisfactory. But we don’t necessarily want plaintiffs, in the name of diversity, to have folks who are less experienced take the reins,” Engstrom says. “How do we ensure that MDLs are led by those with both diverse viewpoints and necessary litigation experience?”
Leadership and pushback
In MDLs, Dawson says, she is often selecting her own team, thinking carefully about what experiences, skill sets, and strengths she needs to serve the client. In the Toyota MDL, with 90 timekeepers, “it was like I was managing my own law firm,” she admits. She learned that communication was critical, as well as “making [team members] feel valued, organizing them in a way to avoid duplication of effort and to give them ownership over key pieces,” she says. “You can’t do everything as the leader, so you’ve got to really pick and choose strong people in particular areas.” And, she admits, “I also try to pick people, quite frankly, that understand this notion of playing well in the sandbox with others.” In her time leading MDLs, she says, “I have learned how important it is to show people that you see them, you value them, and you welcome their ideas and feedback.”
You just have to be a person that has no problem with having those difficult conversations and being fine with certain people just not liking you.
Dawson
But as a coordinating counsel for MDLs, Dawson may sometimes be in the position of working with a group of corporate defendants—each with their own level of exposure—and other lawyers, some of whom may not be willing to defer to her leadership. In such situations, she says, she has to “increase [her] emotional intelligence” and “understand that there are certain people who are nonetheless going to be jealous, backstabbing, and hate your guts and not want you to be telling them what to do, even if you’re not really telling them, but their perception is that somehow you’re over them,” she says. “And then being a Black woman on top of that, there are some people that just could not handle [me being in charge].” Her advice? “You have to be very strong and basically say, ‘You know what? I’m doing my job and if you have an issue with it, that’s your issue.’”
In the past, with pushback, Dawson has been direct. She would say:
Listen, you don’t have to like me, but I do need you to respect me. The client has asked me to be the national coordinating counsel, and if you perceive that as me being “over you,” that’s understandable, but ultimately this is the role I have, which requires you to provide information when I request it and to listen to me when I provide guidance and instruction because it’s really not me unilaterally telling you what to do. The guidance and instruction are coming through me, but it’s from our shared client. Don’t we both want to do what’s in the client’s best interest and show the client that we can play well in the sandbox together?
In the end, Dawson says, “you just have to be a person that has no problem with having those difficult conversations and being fine with certain people just not liking you.”
Communication
In 2022, Stanford’s Deborah Rhode Center for the Legal Profession, which Engstrom codirects, hosted a convening on multidistrict litigation, documenting the strengths and weaknesses of the litigation that now occupies so much of the federal civil docket. The resulting publication, Plaintiffs and Attorneys in Multidistrict Litigation: Strengths, Deficits, and Paths Forward by Engstrom and her colleagues, reports that communication remains a key challenge for litigants and attorneys embroiled in MDLs, and some of Engstrom’s other work explores possible fixes, including streamlined communication using technology.
The hardest lesson I had to learn was [being a leader] means asking for help and showing your vulnerability.
Dawson
This inquiry is important, Engstrom says, because there is some evidence that some MDL plaintiffs aren’t particularly satisfied with the MDL process in general, and with their ability to interact with leadership counsel in particular. But, Engstrom emphasizes that this evidence is contested and limited. And, even if plaintiffs are somewhat dissatisfied, this dissatisfaction must be weighed against the likelihood that, for some clients, an MDL is their only opportunity to go to court. The choice, Engstrom says, “sometimes isn’t between an MDL versus individualized representation. The choice, realistically, is between an MDL and no representation at all.”
For her own part, Dawson prioritizes communication with her clients and staff during litigation. “The hardest lesson I had to learn was [being a leader] means asking for help and showing your vulnerability,” Dawson says. “Because when you’re working with 90 people and you act like you’ve got it all handled, guess what? Those people are less engaged and invested, and they feel less connected and loyal to you.”
Cover image: Unimages / shutterstock
