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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

The Cause Lawyer and the Class Action

Posted in Lawyers, Settlement

 I’ve spent a lot of time over the last two years poking (as best I can) into the head of the entrepreneurial plaintiff’s lawyer. That is, the plaintiff’s lawyer that treats her lawsuits like business opportunities, keeping a diversified portfolio and working to maximize the profit from each opportunity. But there is another kind of lawyer that brings class actions, one often referred to as the "cause lawyer." Rather than working for profit, this group is motivated by a desire for social change. Cause lawyers are rarer in class action practice, but they’re not nonexistent. So, how does the class action defendant deal with a cause lawyer?

Colorado professor Deborah Cantrell has a new article Lawyers, Loyalty and Social Change (Oxford comma omitted in original), which tackles just that question.

According to Professor Cantrell, one can distinguish cause lawyers by their incentives. Cause lawyers are (clearly) not motivated by the money. Instead, they tend to be motivated by the advancement of a single social cause. As Professor Cantrell puts it, it is the

common feature of social change advocacy – that participants, including cause lawyers, identify strongly with their side of the issue and distrust with a similar intensity participants on the other side. In fact, this Article argues that such hyper-loyalty is considered a core condition and baseline requirement of the relationship between cause lawyer and cause client.

(Emphasis added). It is this "hyper-loyalty" that defines the cause lawyer:

In contrast to much for-profit lawyering, cause lawyering brings with it robust notions of solidarity between client and lawyer. The proposition is that there is more solidarity between the cause lawyer and client because both of them understand their work together to be situated within a larger interest in social change. … Independent of their legal relationship, the lawyer and client are loyal to each other because of their shared commitment to their cause (whatever it may be). Their “cause loyalty” is stronger than the typical professional loyalty between lawyer and client. It is hyper- loyalty.

(Emphasis added.) Cantrell traces that hyper-loyalty to a few causes. Since many cause lawyers appear to come from "elite" backgrounds (law school costs a lot of money, and cause lawyering may require some independent income since it pays much less than other legal work), hyper-loyalty may be a compensatory mechanism to assure poorer clients that the lawyer is truly on their side.

Moreover, this hyper-loyalty may also stem from cause lawyers’ tendency to the see world as bipolar, divided into a clear "us" and "them."

Additionally, a constitutive part of social change, or cause, work is that cause advocates are pushing against the status quo. In order to mobilize a collective for action, there must be some sense that there is a group pushing for change and a group content with the status quo – in other words, some sense of “us” and “them."

(Emphasis added.) Most lawyers wind up buying into their clients’ mindsets to some degree. (It can be hard not to.) But many for-profit lawyers can distance themselves from their clients by noting that every client its day in court, regardless of its views. Cause lawyers, by contrast, may hold a sincere and deep belief that their clients are in the right–why else would the lawyer represent them? In fact, Cantrell notes, some cause lawyers (or cause clients) may have deep suspicion of outside sources of funding, since they may threaten to change a cause into an "industry."

Cantrell identifies two problems with the cause lawyer’s hyper-loyalty. First, if the lawyer is hyper-loyal to the cause, she may wind up selling out her individual client:

the worry is that cause lawyers will understand their true loyalty to be to the cause, and thus view their clients as one of several pieces of an advocacy strategy to be deployed. Clients become pawns, not empowered individuals.

On the other hand, if the lawyer is hyper-loyal to the client, not the cause, then she risks a polarized view of the world, in which others are either "friends" or "enemies," with little middle ground, and little room to negotiate. In that case, a cause lawyer may take actions that benefit her individual client, but sacrifice the actual cause. (And, in class action, the cause is likely to include the absent class members.)

So, how does the class-action defense lawyer deal with cause lawyers? Professor Cantrell’s analysis suggests a few tactics to keep in mind:

  • Focus on non-monetary compensation when negotiating. Courts are often suspicious of non-monetary compensation in class actions. But if one is negotiating with a cause lawyer, actual changes in behavior may be the real relief her client (and the class) seeks. These changes will have to be genuine, of course. Given the tendency for cause lawyers to view "enemies" with heightened suspicion, they’re unlikely to be satisfied with lip service, and they have little monetary incentive to accept minor changes so long as there are large fees.
  • Focus on the adequacy of the class representative. Given the risk that the lawyer and the client may be too loyal to each other (resulting in, say, demands for outsized incentive payments), it is doubly important that someone–most often the court–is paying attention to the needs of the absent class members.
  • Focus on the adequacy of class counsel. If the lawyer is hyper-loyal to the cause, then she may make some moves that show an insufficient regard for her fiduciary duty to either the named plaintiff or to the absent class members (to the extent that they are just another means to support the cause). In those cases, the defense will want to make sure that the Court is paying attention to the needs of the class, as opposed to the lawyer.

It remains a central irony of class action practice that, regardless of whether the plaintiff’s lawyer is motivated by money or loyalty to a larger cause, her incentives are not going to line up with her client’s much of the time. As a result, it remains the case that the strongest class-action defenses often focus on what is best for the absent class members.

UPDATE – Russell Jackson of Consumer Class Actions & Mass Torts has some additional, less cynical, and of course, well-taken advice on how to deal with cause lawyers (or, as he likes to call them, "true believers").  If you’ve popped over here from there, welcome!  If not, do check out his take as well. 

(He’s also, finally, picked himself up a Twitter feed …)

  • Daniel

    Great article. I work for an entrepreneurial plaintiff’s lawyer, so your blog is very interesting to me. We are just getting into class actions.

    Keep up the good work!

  • http://www.litigationandtrial.com/ Max Kennerly

    I agree with Russell. Anyone who thinks “cause lawyers” are foaming-at-the-mouth absolutists — a belief apparently held by Deborah Cantrell — is blind, hasn’t spent enough time around cause lawyers, or only knows cause lawyers from a handful of fields in which the issues are understandably black-and-white to the lawyers. It’s depressing to see Cantrell, a former cause clause, portray all cause lawyers as being little more than rabid dogs lacking any sense of strategy or recognition of the benefits of compromise.

  • http://consumerclassactionsmasstorts.com Russell Jackson

    Yes, make fun of me because I’m late to the Twitter party. You can even call me “The Reluctant Twitterer,” as I still don’t see the value in it. I’m playing along for a while and having a bit of fun, but honestly I prefer an RSS feed for my news and I don’t feel a great urge to write hourly Haiku. (What the hell is the plural of Haiku, anyway?) The jury is still out on how long my little bluebird of happiness will continue to tweet.