April 16, 2018 Articles

Tips for Young Lawyers: Mass Torts Offering Opportunities to Rise to the Occasion

By Taryn W. Harper

It is easy for young lawyers to get in the habit of taking a backseat when staffed on a mass tort team. You take on a project when it is assigned to you, keep your head down until it is finished, and maintain a relatively safe and comfortable distance from the major decision making entrusted to your more senior counterparts. And there is not necessarily anything wrong with that—after all, you are helping as needed and getting in your billable hours—but you may be missing out on valuable opportunities.

There are several ways a young lawyer can dig in, add value, and improve his or her skills on a mass tort team. Sure, a junior lawyer might not be taking key expert depositions or serving as lead trial counsel in a bellwether case (though it is possible!), but there are plenty of other avenues for a young lawyer to take on responsibility and become an asset to the team, gaining credibility and developing skills along the way. Though far from exhaustive, the following strategies can help you break away from the habit of passivity and become an integral part of your mass tort team.

Take Ownership
The complex nature of a mass action, having many players and moving parts, lends itself to leadership opportunities for young lawyers. By taking on responsibility and ownership over a particular piece of the litigation, a young lawyer can demonstrate and improve his or her leadership and management skills, which are qualities that otherwise lie dormant when hanging back and assisting with discrete projects. In addition, in becoming the “go-to” person for a particular aspect of the litigation, a young lawyer can become an indispensable member of the team and contribute in a meaningful and measureable way to the overall litigation. The following are examples of leadership roles that lend themselves to the skill set of a young lawyer:

1. The obvious: Become the master of the facts and documents. There is a well-known stigma associated with “doc review,” but we cannot deny that it is a requisite part of any litigation and can be particularly valuable in a mass action with complex facts, numerous witnesses, and volumes of documents exchanged in discovery. Knowing the facts and documents can help you become a resource and an indispensable member of your team, and it may even open the doors to other opportunities for involvement in the litigation.

Of course, anyone can sift through a pile of documents, and this exercise can be of little value if not done effectively. Here are a few extra steps you can take to maximize the value of your efforts:

  • Before diving in, take a moment to familiarize yourself with the key players, subject matter, and issues in the litigation. This might require looking over the pleadings and making sure you understand the parties involved, the facts and circumstances alleged to form the basis of the litigation, and the claims and legal theories asserted by the parties on both sides. You also may need to do some initial research on the product or other subject of the litigation. Familiarity with the underlying facts and legal issues that are central to the litigation will help to inform and focus your assessment of the documents and will enable you to identify what is and is not relevant.

  • Make sure you have at least some understanding of your client and, if applicable, its business. If you do not have prior experience with this client, spend 10 minutes looking up basic information about the client and learning who the client is and what the client does. If it is a company, pull up its website, see what products it makes or services it provides, if it has a company mission, where it is located (is it a foreign-based company?), and any other information that will help you get to know your client. This information will assist you in understanding documents collected from your client and may even alert you to potential jurisdictional or discovery issues to raise to your team.

  • In going through the documents, be mindful, of course, of the core issues and keep an eye out for relevant documents or information. However, you can go the extra step and pay attention to not only what is there but also what isn’t. Are there gaps in the documents? Are there any other documents that you think would be helpful to collect? Are there any potential witnesses identified in the documents of whom your team should be aware? Recognizing and raising these issues will enhance your contribution and credibility.

While weeding through the documents is tedious, the time and effort spent ultimately will pay off when you are able to use that information to contribute to your team and your client’s case. Knowing the universe of documents that have been collected or exchanged in the litigation—and what those documents actually say—becomes critical at nearly every stage of the litigation, from responding to discovery requests to planning for trial. You can use your knowledge of the documents to educate senior members of your team who don’t have time to sort through the records and need your help to pick out and alert them to key facts and information. You also can become a resource for other members of your team as they prepare for depositions or hearings—or perhaps you will get those opportunities because of your demonstrated understanding of the case.

2. Assist with early case management orders and protocol. Courts presiding over a multidistrict litigation (MDL) or other coordinated action typically enter a number of case management orders to structure the litigation and govern various pretrial matters, and often ask the parties to submit proposed orders for the court to consider. Several of such orders are needed almost immediately after the consolidated action is formed, and they often include an order establishing procedures and deadlines for filing master pleadings, short-form complaints, and remand or other initial motions, as well as various orders needed for the parties to begin exchanging documents and information, such as a discovery order or protocol, an electronically stored information (ESI) protocol, and a confidentiality or protective order.

A young lawyer can play an important role in helping draft these foundational documents. Even if you have no prior experience with case management orders or protocol in a mass litigation, these orders often are similar in nature to standard scheduling, discovery, or protective orders, though tailored to meet the needs of a more complex action. There are several resources you can use in taking the first cut at a proposed case management order or other protocol, as all of the case management orders entered in federal MDLs, and many of the orders used in state coordinated proceedings, are readily available online and can be used to craft provisions appropriate for the particular nature and size of the litigation. Assisting with these types of submissions offers opportunities to get involved early in the litigation, make connections with counsel for other parties helping with the joint submission, and become familiar with the procedures and issues that will guide discovery and pretrial practice.

3. Get involved in the fact sheet process or other discovery opportunities unique to mass litigations. Aside from assisting with written discovery and document production, which are valuable opportunities for involvement in a mass action just as in any case, mass tort proceedings offer additional vehicles for young lawyers to take on responsibility in the discovery process and gain experience that might not be afforded in other cases. One such opportunity relates to plaintiff and defense fact sheets and deficiency letters, which have become common discovery tools in mass actions to promote the early exchange of information and weed out meritless claims, such as those lacking in product identification or injury, before proceeding to full-blown discovery. As a young lawyer, you can volunteer to help create or give input on the template that will be used for the fact sheets, which offers an opportunity to collaborate with other counsel and get to know key discovery issues early on. You also can get involved in preparing and reviewing fact sheets and related deficiency letters, which are integral and important tasks in mass litigations and are ones that can be performed and managed by a young lawyer, with significant impact in reducing the overall number of claims against and exposure of his or her client.

In addition, given the sheer number of cases in a mass action, a young lawyer may have more opportunities to take depositions of plaintiffs, spouses, treaters, or other fact witnesses. While expert depositions are often reserved for more senior attorneys in a mass litigation, young lawyers can play a critical role in helping prepare their client’s retained expert for his or her deposition and in collecting the information, potential exhibits, and outlines needed for expert depositions.

4. Spearhead researching and briefing a key legal issue. As in other cases, disputed issues may result in motion practice at any stage of litigation, though the resolution of those disputes in the mass tort context often affects a greater number of cases and may get more publicity than it would in a run-of-the-mill, one-off case. A young lawyer can contribute significantly when these issues arise by taking responsibility for researching and analyzing the issue, which will often vary depending on applicable state law. Perhaps the associate can follow up by preparing a write-up or memorandum to the team or the client that conveys this analysis and proposes courses of action. Associates should pay particular attention to the possibility of peculiar, state-specific defenses that could be dispositive in particular cases. In doing so, you can become the point person for that issue and assist in drafting, perhaps in coordination with your co-counsel, any motions or briefs on that particular issue and, ultimately, helping prepare for or even argue a hearing on the matter.

5. Monitor and manage cases filed outside the coordinated proceeding. Often, an MDL or state consolidated action will subsume the majority of the universe of claims, but there are often cases that, because of jurisdictional or removal barriers or otherwise, remain pending in courts outside the coordinated proceeding. As a young lawyer, you can take on management responsibilities in these cases, helping the senior members of your team whose focus and time often are consumed by the mass consolidated action. This likely would entail day-to-day monitoring and tracking of deadlines, but it also could pave the way to more substantive involvement, like taking the lead in drafting pleadings and motions, taking depositions, and heading up discovery and other pretrial activities.

Keep the Bigger Picture in Mind
While it is important to focus your attention on whatever aspect of the litigation you are helping with, you must remain mindful of the big-picture strategy. It is all too easy to become so into the weeds that you lose sight of your objectives or miss something that is right in front of you. To prevent that from happening, make sure you are familiar with your client’s story and your case themes, and try to stay plugged into discussions of global strategy and objectives. As you take on new responsibilities and perform tasks related to the litigation, you should be able to identify why you are doing what it is you are doing and how it fits into the overall strategy.

Keeping the bigger picture in mind not only will help bring focus and direction to the particular task at hand, thus improving your work product, but also will help you to recognize when other related tasks or follow-up steps are needed. By identifying and recommending courses of action in these circumstances, you take advantage of opportunities to add value and gain credibility.

Get to Know the Client
For many young lawyers, opportunities to interact directly with the client are limited. However, greater involvement in a mass action may yield greater opportunity to build and foster client relationships. For example, by taking ownership over document collection and analysis, you may be responsible for interacting directly with your client to request and collect the documents needed for the litigation, and, if it is a corporate client, you may find yourself communicating frequently with different in-house legal staff and document custodians. Forming these relationships and knowing the appropriate points of contact for different matters can help you to communicate effectively and facilitate your efforts to collect information or answers needed in the present litigation or in other matters you handle for the client.

Even if your involvement in the litigation does not lend itself to opportunities for direct client contact, you can be proactive and offer to draft or send updates on the litigation to the client or to assist in preparing for or sitting in on strategy calls with the client. This not only serves to help the senior attorneys who often shoulder the responsibility for client management—which can be particularly difficult in the world of high-volume and high-activity mass torts—but also provides a pathway for you to get in front of and get to know the client. These opportunities to demonstrate initiative, responsibility, and responsiveness can leave lasting impressions with both your team and the client. If it is a regular client of your firm, those connections may open the door to getting staffed on and taking on even greater roles in future cases for the client.

Always Speak Up
This final tip applies in all cases, but it bears repeating here. It can be intimidating for young lawyers to be involved in a mass action with seasoned lawyers and complex legal and factual issues, and there may be some hesitation to voice an idea or risk getting something wrong. But it is particularly important in mass litigations to speak up when you know the answer to a question that arises or if you come across a document or state-specific legal issue you think might be important to the case or if you can point to some document or information that might help resolve an issue. With several players, much activity, and volumes of documents and information being exchanged, it is critical that you be able to provide this information without hesitation.

Another important aspect of this is to communicate. Given the complex nature of mass torts, it is crucial in these litigations, as in any, to keep open lines of communication with your team. Make sure you are clear about deadlines, assignments, and expectations. Don’t be afraid to ask questions, send reminders, or follow up when things are not going as planned. Keeping everyone informed and on the same page ensures that things get done and nothing falls through the cracks, and your colleagues will appreciate being able to manage their to-do lists and time if you are organized, communicate, and set clear expectations and deadlines.

Finally, speak up to get opportunities. This article discusses only a subset of ways in which a young lawyer can get involved and add value to a mass tort team. Be proactive about volunteering and expressing interest in taking on these and other opportunities that arise throughout the life of the litigation.

 

Taryn W. Harper is with Greenberg Traurig LLP.


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