The Top Nine Pitfalls of Establishing a Mass Torts Practice

This is the second of a three-article series related to working in the legal field of mass torts. In our first article, we addressed how to build a mass tort practice, and in our final article we provide best practices for attorneys interested in mass tort marketing.

Mass torts constitute a growing area of practice for many attorneys. The opportunity to help injured people discover the source for their injury as well as the potential for substantial compensation has inspired many firms to dip their toes into mass torts.‌

‌Mass tort cases involve tort actions or personal injury lawsuits — lawsuits against an entity for an action that caused an injury or illness — on a mass scale. Mass tort cases often occur when a company makes a product that injures many people, sometimes known as a mass injury event. Unlike class action cases, the  injured parties may not face the same type of injury, so they bring their lawsuits separately.

‌Mass torts can be very rewarding. But before you jump in, be aware of some of the potential pitfalls to avoid for successful mass tort management.

1. Not Choosing Your Cases Well

Getting involved in a case early on can help maximize returns. The mass tort rumor mill is much like the stock market: rumors abound about which cases might provide the next big opportunity for firms interested in mass tort cases. Be careful when listening to these rumors. Use your judgment as an attorney to carefully evaluate the potential strengths and weaknesses of a case before jumping at a potential opportunity.

2. Not Being Able to Find Clients

‌One of the biggest mass tort considerations is finding potential clients. In many instances, potential clients in mass tort cases are not aware of the source of their injury. For example, they may have no idea that they developed cancer because they used a certain medication or pesticide. Even when the FDA has issued a recall or a warning about a product, they may not be aware of it or may not have made the connection between the product and their injury. Attorneys who regularly work with mass torts estimate that only 10-20% of potential mass tort clients become aware of their claim.‌

‌To address this potential pitfall, mass tort attorneys engage in large-scale marketing campaigns on television, radio, social media, and other outlets. Most attorneys outsource the marketing campaigns to professional marketing firms. However, be sure to provide careful oversight of the marketing campaigns to ensure they comply with all applicable ethical rules for attorney marketing.

‌3.  Not Conducting Client Intake Thoroughly and Efficiently

‌Client intake is a huge potential pitfall for mass tort attorneys. Many problems arise during client intake. Because of the sheer numbers of clients involved for a tort to qualify as “mass,” getting the intake process right is essential to successfully working in mass torts.

‌If your marketing campaign has been successful, you will have generated a significant number of leads for potential clients. Filtering through these leads and screening out those who are unlikely to have a valid claim is crucial. You should develop a list of appropriate, specific questions that will screen for clients who may qualify for representation.

‌Then you need to investigate the claim by evaluating medical records, reviewing photos, ordering pharmacy records, and gathering other key evidence. This should be done as soon as possible after signing a client. A client is more likely to send you this information in the beginning of your relationship while the case is fresh in the client’s mind. Waiting until later to gather this evidence can lead to delays.

Timing is vital in these cases. Due to recent tort reform in many states, the statute of limitations for tort cases can be relatively short.

‌Once you have a fairly good grasp of the evidence in a potential case, you need to decide whether to inventory the case for the future, or to file the case right away. Making this decision may depend on whether bellwether cases — test cases in mass torts — have been resolved with favorable outcomes for the plaintiff.

‌Some smaller firms or solo practitioners may not be equipped to conduct client intake on the scale necessary for mass torts. Many smaller firms and attorneys just beginning with mass torts hire an intake specialist company to handle this process, but even well-established firms outsource intake because of the need for quality work. Doing it yourself without resources to back you up can lead to losing clients. ‌

‌Speed matters in client intake because once potential clients learn they may have a claim, they are almost certainly shopping around at many law firms. Often the firm they end up signing with is the one who offered them a retainer agreement first. Using tools on your website to keep potential clients engaged is one way to secure clients quickly.‌

‌In addition to speed, your intake specialists — whether in-house or outsourced — should know how to talk to potential clients. While you must be careful not to promise any certain outcomes or make any other unethical statements, you should be able to state your confidence in a client’s case and assure them you will not be paid until they are. Tying your compensation to theirs helps increase client trust.‌

‌4.  Not Having the Time for Lengthy Cases

‌Mass tort cases often take longer than the average lawsuit to resolve. Whether you have the patience for a long lag between client intake and payment is another big mass tort consideration. Many cases take years to reach a resolution. Some mass tort experts estimate that cases take three to five years on average.‌

‌If you are going to take on mass tort cases, expect that you will have to wait a long time for any return on your investment in the cases. You should also be aware that client communication is especially important in cases that will have a long wait before an outcome.‌

‌5.  Not Communicating Effectively with Your Clients

‌Client communication is key in any sort of case, and attorneys have an ethical obligation to communicate effectively with clients. Communication is especially important in mass tort cases. ‌

‌Often attorneys wait for a development in a case to prompt them to communicate with their clients. If the case is like most mass tort cases, however, you may not have an external prompt to update your client. You will need to determine a sufficiently frequent communication schedule. If you fail to do so, you risk losing your clients.‌

‌Without regular communication from you, your clients may forget that they have already signed a retainer agreement, or they may assume that you are no longer their attorney. Mass tort cases often lead to situations in which clients sign with multiple firms. This is frequently caused by irregular communication from the client’s first firm. Lack of clear communication during intake may also lead to this problem — some clients may not even realize they signed a retainer agreement with you if your intake process is not sufficiently clear.‌

‌Lack of communication is also one of the primary reason clients leave their attorneys bad reviews. If you rack up enough bad reviews, you will have difficulty generating leads for future clients.‌

‌6.  Having a Low Tolerance for Risk

‌Mass tort cases are generally higher risk than typical commercial or personal injury litigation. However, the higher risk often leads to a higher payout in the end. If you have a very high tolerance for risk, taking on mass tort cases in the very beginning stages, before many other cases involving the product or event have been filed, may lead to a higher reward. Those who are more risk-averse may still be able to work in mass torts by sticking to cases involving products or events that have already had good outcomes, like Roundup or Zantac.‌

‌7.  Not Having Enough Capital to Invest

‌Mass tort cases sometimes involve significant investment. Marketing to garner leads, conducting thorough intake processes to quickly screen and sign clients, gathering evidence, and retaining experts, are all expensive. While mass torts is high-risk and high-reward, you need to have the capital to invest.‌

‌Some attorneys go to banks for mass tort loans. Others band with other firms as co-counsel. These other firms may agree to stay mostly silent and let you handle the litigation. Others want to be involved in litigation and other elements of the process, including marketing and intake.‌

‌8.  Improperly Navigating Co-Counsel Relationships 

‌If you do choose to enter into a co-counsel relationship, you will need to divide the responsibilities of the case between you. That may involve one firm handling intake and another handling the litigation. One may be more of a silent partner, primarily providing upfront capital and otherwise taking a back seat.‌

‌However you work out the logistics of the co-counsel relationship, important ethical considerations may arise. One key consideration is the retainer agreement. In a co-counsel relationship in a mass tort case, best practice is to put the names of all the attorneys involved on the retainer agreement.‌

‌Another ethical and practical consideration is splitting fees. Your state law will govern how you may split fees with your co-counsel.‌

‌9.  Not Vetting Your Partners

‌While most attorneys and firms new to mass torts will likely need to partner with a marketing firm, a client intake specialist, or another firm to help handle the sheer scale of mass tort cases, a major concern is carefully vetting these entities. Before you agree to work with anyone, ensure that they have a proven track record in this practice area. Do not waste your time or your clients’ time as someone’s trial run. Instead, use trusted partners like Martindale-Avvo.