In-House Counsel, Litigators

A Statistic That Should Guide Large Litigation Firms

A very small number of judges effectively resolve one-third of the nation's federal civil cases.

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dartboard pen inside straightI’m working on the second edition of my book: Drug and Device Product Liability Litigation Strategy. (I love Amazon. A recent review of that 500-page treatise rates it three stars: “An absolutely great product! I was able to thin cut a baguette that usually I struggle with. Perfectly smooth cutting!” I’d heard several reactions to the book – “makes a great doorstop,” “excellent paperweight,” and so on — but never before that you could use it to thin cut a baguette. I’ll have to try that.)

Anyway, here’s a statistic that I came across while preparing the text of the second edition: Cases in multidistrict litigation proceedings constituted 36 percent of the federal case load in 2014, which is more than double the percentage they constituted in 2002. Not only that: “Removing 70,328 prisoner and social security cases from the total, cases that typically (though not always) require relatively little time of Article III judges, the 120,449 pending actions in MDLs represented 45.6% of the pending civil cases as of June 2014.” Read that again: 45.6 percent of all pending federal civil cases. And virtually all of those cases are in pharmaceutical and health-care product liability MDLs.

Egad!

First, that means that the judges overseeing 18 MDLs — transferee judges selected by the MDL Panel — effectively resolve one-third of the nation’s federal civil cases (or nearly one-half of the cases, once you exclude prisoner and social security cases). That’s a very small number of people — not selected randomly — controlling an unbelievable slice of the American judicial pie. As a policy matter, that’s enough to get you thinking.

(I know from personal experience that those 18 people share ideas about how cases should best be handled. For a while, those judges liked certifying classes to resolve pharmaceutical mass torts. That idea faded, and now the judges like bellwether trials. But, as bellwether cases approach trial, plaintiffs dismiss the weak cases and defendants settle the strong ones. How can a judge cause the right cases to be tried? Maybe we’d like some fresh thinking on that subject, rather than 18 judges with shared experiences coming up with common answers. And that’s not even getting into areas where judges’ shared ideas may favor one side over the other.)

Anyway, society should think hard about this concentration of power in the hands of a few, not randomly selected, people.

Second, what does my statistic say for big law firms that pride themselves on having a robust litigation practice? You can try to maintain a big practice without a drug and device group, but you’re not competing for one-third of the pending federal cases. For big firms — trying to control a measurable percentage of cases filed every year — that’s conceding an awful lot of the playing field. You can do corporate disputes and antitrust matters and the rest, but you’re simply not under consideration for one-third of the cases. It’s hard to stay competitive in that environment.

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I know that attorneys’ fees have been compressed in the drug and device space over the last decade. Pharmaceutical companies are big, repeat players in this field, and they negotiate tough rate deals with their law firms. Even so, if your firm intends to maintain a large litigation practice, it’s hard to give up on most criminal cases, and immigration cases, and social security cases, and any family law cases that show up in federal court — none of which big firms handle — and then surrender a huge chunk of the remaining caseload.

What does this say for the future? I’d predict that you might see more competition in the lateral market for high-profile drug and device lawyers, but I’d be late to the table for that prediction. We’ve seen several high-profile moves in this space in the last five years. (It can also be difficult to move drug and device practices. By definition, the desirable cases for large firms are often mass torts, which require a small army of lawyers to defend. It can be hard to pick off a person or two on the lateral market and be sure that an entire mass tort practice will move with them.)

So I won’t predict an increasing number of lateral moves. But I will say that firms that have recently bowed (or been pushed) out of the drug and device field might want to reconsider. It’s going to be hard to maintain a large litigation practice without competing in this space.

One final thing: Why the heck am I revising my book on the defense of drug and device products cases when I’m now in-house, not working in the drug and device space, and am no longer trying to attract clients?

Because I’m an idiot I co-wrote the first edition of the damned thing, and I’m not going to let my project move into the hands of someone else so quickly. I grant that this is extra effort for no particular reason, but sometimes it’s hard to let go of one’s past. And, besides, who knows what the future may bring?

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Keep an eye out for that second edition, which I’m guessing might hit the streets about year-end. And, in the meantime, think about expanding your drug and device practice. It feels as though there’s nowhere else to go.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. 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 inhouse@abovethelaw.com.

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