As I’ve written before, guessing at the motives and methods of plaintiffs’ lawyers in class actions can be much like old-style Kremlinology. But every once in a while, we get a little more information. The most recent comes from University of Minnesota Law School professor Stephen Meili, who just published his article Collective Justice and Personal Gain? An Empirical Analysis of Consumer Class Action Lawyers and Named Plaintiffs in the Akron Law Review.
Professor Meili’s methodology is not ideal: he basically just sent a series of open-ended questions to class-action plaintiffs and their attorneys, asking them about their perceptions of how a given case proceeded, and how fair the process was. As he admits, that means that no one talks about unsuccessful cases. Moreover, the self-reporting means that the plaintiffs’ lawyers may try to make themselves sound more noble than they are otherwise. (For example, only 5 of 33 lawyers mentioned making money. There may be that many noble plaintiffs’ attorneys, but they seem to disappear around the time they make fee requests.)
Nonetheless, because of its open-ended nature, Professor Meili’s survey elicited some revealing statements from the plaintiffs attorneys, and he does not shy away from the implications of what those attorneys told him. Among them:
Unlike conventional plaintiffs’ lawyers, class-action lawyers inflate the expectations of their clients.
[C]onsumer class action lawyers often deliberately inflate the expectations of their clients, encouraging them to look beyond individual monetary compensation and focus instead on relief for the entire class, which sometimes includes non-monetary awards. In this way, class action lawyers do more than merely manage their client’s expectations, a well-documented process in individual litigation. Instead, they consciously urge their clients to expand those expectations. If their clients refuse to be so encouraged, the lawyers opt not to include them as named plaintiffs.
Class-action lawyers prefer ignorant clients because they are easier to control.
[I]t appears that in choosing a suitable class representative, consumer class action lawyers seek someone willing to represent large numbers of persons but who was unaware of such willingness before they talked to the lawyer. The lawyers find it easier to keep such named plaintiffs focused throughout the typically long class action process.
Class-action lawyers don’t communicate with their clients.
This awareness of named plaintiff motivation is particularly noteworthy because most of the lawyers in the study said that they spend less time communicating with named plaintiffs than they do with their clients in individual cases.
What does these findings mean for defendants? They do confirm some of defense lawyers’ suspicions. Class actions are usually manufactured cases, and it is really the lawyer driving the case, not the client. But the most disturbing conclusion is not that the lawyers are in the drivers’ seat. After all, for many defense lawyers and judges, that is hardly news. Instead, it is the finding that many class-action lawyers deliberately screen for the most ignorant and malleable clients, so that they’ll be easier to control. In the day-to-day conduct of the litigation, this may not mean much. But should the parties try to reach a settlement, this means that the named plaintiff is more likely to serve the plaintiff attorneys’ interests than those of the class. And that is exactly what courts try to guard against.
It also means that plaintiffs’ counsel continue to treat the adequacy of their clients as a hurdle, rather than a requirement. As a result, as both zealous advocates and officers of the court, it is critical that defense lawyers probe the adequacy of the proposed class representative. In particular, defense attorneys should be asking:
- Was it the client’s idea to bring the case as a class action?
- Was the client recruited to the case?
- How often does the client communicate with her lawyer?
- What were the client’s expectations at the beginning of the litigation?
Defense counsel have long argued that ignorant plaintiffs are inadequate plaintiffs, often with little success. Professor Meili’s study shows that, once again, defendants should not focus on the ignorance itself, but its effects. The reason ignorant plaintiffs are inadequate is not because they are ignorant, but because they lack the independence to stand up to their lawyers.