For several years, my practice focused primarily on business litigation matters affecting smaller, corporate clients. I was happy with my practice and wasn’t really looking to do anything new or different. But in early 2010, I was asked to help with a new type of case—a consumer-based class action. At the time, I knew nothing about class actions, but I accepted the assignment as a new opportunity and headed down a new path. I had no idea that agreeing to help with that case would be a defining moment that would shape my career.
That first class case was a big one: In re Toyota Motor Corp. Unintended Acceleration, Marketing, Sales Practices & Products Liability Litigation. Consumers who had allegedly experienced unintended acceleration events while driving certain Toyota and Lexus vehicles (or who owned cars with the propensity for those events) were filing cases across the country alleging damages for personal injuries and economic losses. The case was all over the news, and it was exciting to work on such a big case.
Given that this was my first class case, my role was focused on discovery. This included the not-so-glamorous job of reviewing thousands of pages of documents produced by the defendants. But it also involved much more, including working directly with the consumer plaintiffs. I essentially became the plaintiffs’ liaison and advocate through the discovery process. I helped them respond to discovery requests and produce their documents, and I helped them prepare for their depositions.
While I had worked with plaintiffs before, this experience was different. These clients weren’t corporate entities. They were everyday, regular people. People who had never been involved in any litigation before, let alone a complex case or a class action. They were simply individuals who had reached out to us (as attorneys) because they felt they had been wronged. It was my job to educate them, to comfort them, and to lead them through a “foreign” process that many attorneys take for granted. While working with these clients, I formed a bond with them—one that I hadn’t found in my prior business litigation cases. I was hooked.
In my prior cases, I generally worked with either corporate representatives or corporate counsel. Most of these individuals had been involved in litigation before or were familiar with the business issues forming the basis of the litigation. Consumer plaintiffs are different. They come to attorneys with very little knowledge of anything beyond how they have been harmed. Most of them have never seen a complaint before and have no idea what terms like “interrogatories” or “document requests” mean. As attorneys, we often take these terms for granted, and we forget that they can be very intimidating to clients who have no legal background or experience. Consumer plaintiffs simply want to tell their story, have someone listen, and, ultimately, have someone help them. They don’t always appreciate or understand the complexity of the process they must go through to get the relief they seek. It’s my job to help them understand.
I find that when working with consumer plaintiffs, my role is very much that of “counselor.” When I meet with them, I let them talk. I want to understand who they are and what has happened to them. The open-ended dialogue elicits a lot of unnecessary information for litigation purposes, but it helps us build a rapport. I then work with the clients to help them translate their story into allegations, discovery responses, and deposition testimony.
When working with clients, I try to learn as much as I can in the beginning about their experience with litigation. Some consumer plaintiffs have experience (I’ve worked with attorneys and judges as consumer clients). But for those with no prior experience—the vast majority—I know that I must break down each step of the litigation process, using simple terms, so they understand what is happening and what is required of them. For instance, the other day I was working with a client on interrogatory responses. Before we began, I spent a significant amount of time explaining what interrogatories are (formal, written questions) and how the answers to those questions will be used throughout the litigation. Likewise, when preparing clients for depositions, in addition to substantive preparation, I spend a lot of time explaining what is going to happen at the deposition, right down to describing what they will likely see when they walk in the room. Litigation is a tedious and daunting process, and much of my job is to make it as comfortable as I can for my clients. That requires a great deal of patience and understanding, but it is incredibly rewarding.
Although I was initially drawn to class actions because of my work with the consumer plaintiffs, class actions also appeal to me for other reasons. Class actions often involve complex legal issues and strategy, which is evolving constantly as the U.S. Supreme Court decides cases directly affecting class actions. In addition to knowing the details of my clients’ cases, I must also stay updated on Supreme Court decisions because they affect each side’s strategies for litigating class cases.
Class actions also provide attorneys with opportunities to develop courtroom skills. Although young attorneys may begin their class action practice by reviewing documents as I did, attorneys will quickly find themselves with opportunities to research and draft briefs on complex legal issues, argue motions before the court, take and defend depositions, work with experts in a variety of fields, and strategize with team attorneys about the best way to seek relief on behalf of clients.
I may not have gone to law school with the intention of becoming a plaintiffs’ class action attorney, but I am glad my path led me to that first case and to the many cases that have come after it. Class action litigation is a rewarding practice (for attorneys on both sides of the “v.”). Even if that is not your direction, my advice is the same: Keep an open mind and never hesitate to take new opportunities when they present themselves. You never know where they will lead you.
Keywords: litigation, class actions, plaintiffs’ attorney, consumer class action, young lawyers, tips for young lawyers
Emily J. Kirk is an associate at McCuneWright LLP in St. Louis, Missouri.