I have to make a public confession:
Ten years ago, I co-authored a book that analyzed in all 50 states the existing analogues to the federal multidistrict litigation process. (Some states have analogues; some do not; some have procedures that serve the same purpose through very different mechanisms.)
Don’t scoff! That book served a public purpose, because the information was not then available anywhere else. And it served a business development purpose: If you work at a large firm, you don’t want to defend one-off product liability cases, because the fees won’t bear the big-firm freight. But you do want to defend those silly products cases the instant they transmogrify into mass torts. What’s the point at which the client knows that it is confronting a truly big and bad mass tort? When it’s defending not only a federal MDL, but statewide coordinated proceedings, too. Presto! Time to retain yours truly, the expert in that untrodden field!
Having written the book, my co-authors and I naturally publicized it. We published articles summarizing the substance of the book; explaining how to draft mini-MDL statutes; and, for publication in specific state bar journals, analyses of the mini-MDL processes available in certain populous states. Although I can’t find an online link to the piece, we wrote in a Ohio bar journal that Ohio was the most populous state not to have a formal procedure for coordinating related lawsuits filed in many counties.
Naturally, this triggered some thought in the Ohio bench and bar about whether the state should catch up with the rest of the world. In 2004, more or less, some judicial committee called to solicit my help (and that of my co-authors) in creating a mini-MDL procedure in Ohio.
That’s when I sinned . . .
When judges ask for help, smart litigators say yes.
When judges ask you for help and you work at a large firm, you naturally let key players (such as your office and practice leaders) know that judges are soliciting your advice. (The boys would otherwise never know about it, and it can’t hurt.)
Remarkably, one of the players I notified nearly a decade ago said “no”: “I have a client facing multiple cases in multiple state courts. We’ve opposed federal MDL treatment, and we would oppose any effort to create state court consolidations. If you create that process in Ohio, then my client could be hurt, so I forbid you from helping the judicial committee.”
I tried logic: “This process is not going to happen overnight. We’ll be writing either a statute or a rule of court; either way, there’ll be months or years of lobbying. And, even if we create a process for aggregating cases in Ohio, your client can always oppose a motion to consolidate your cases. We’re not requiring that cases be consolidated; we’re just creating a process for courts to consider it. Not only that, but think about the longer term: Some day, aren’t you likely to have a client that would appreciate having a mini-MDL process available in Ohio?”
To no avail: “We don’t do things that could hurt my clients. Don’t help the committee.”
Forgive me, readers, for I have sinned: I ignored him.
(I had unthinkingly committed the cardinal sin of law firm partnerships: Never ask permission; just ask forgiveness.) I sent the committee a collection of articles about mini-MDL statutes, and I wrote a short piece explaining how Ohio’s judicial structure could accommodate the procedure.
Why am I telling you this now?
Because I just heard back from the judicial committee in Ohio!
(It’s like the 30 years I spent on the wait list for the University of Chicago Law School. The mills of the Gods grind slowly, but they grind exceedingly small.)
What has happened in the intervening decade (other than Jeremy heading off to college, of course)?
The player I foolishly notified at the firm has turned 65 and retired.
His client’s cases vanished years before he did.
I’ve left the world of multidistrict litigation, the private practice of law, the state of Ohio, and the country of the United States.
But Ohio may — within just the next several years! — create a process for aggregating related lawsuits across county lines.
My sin has been weighing on my conscience for a decade. I feel much better, having come clean. Thanks for hearing my confession.
Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at [email protected].