5 Reasons Mass Tort and Class Action Lawyers Need a Special Master
New York Law Journal
Hon. Marina Corodemus
Complex litigation such as mass torts and class actions are certainly not for the faint of heart. They require a constant vigilance of the litigator with a myopic focus on the task at hand. Unfortunately, it is that focus that results in other important items to fall by the wayside until it’s necessary to add up years of work, or more dangerously “forensically” recreate the time expended. So while you may get a good result in your case, did you do well for yourself and your firm? Poor record keeping and “creative” demands can cost the clients on both sides of the “V.”
With the increased load of trial judges and relatively inexperience of many in this area, having the court practice their skill using your case is not ideal. Increasingly, trial lawyers have started using a Special Master to monitor counsel fees and common benefit funds. Following are five tips on why using a Special Master can help in a mass tort or class action.
- Know Thyself. Certainly not an original philosophy, but it still holds true. You are a litigator, focus on litigation. Instead of focusing on the attorneys fee portion of the case, focus on the litigation. For a fraction of the attorney’s fees you recover, an experienced Special Master can monitor the progress of the attorneys throughout the case and report to the Plaintiffs Steering Committee and the judge on a quarterly basis to discuss progress, time expended, tasks performed and participation by each firm.
- Be a General and not a Spearholder. As the trial lawyer you need to plan the tactical strategy of the case. You need to “oversee” co-counsel, associates, paralegals and witnesses. There are only so many hours in a day and only so many tasks you can perform. If you consistently perform tasks and record them as case management duties 80 hours a week, seven days a week, 52 weeks a years, for four years, then you have lost the battle and the war. Neither the judge nor your co-counsel will believe you. Stop trying to CONTROL every aspect of the case and learn to delegate to those who are more experienced and prepared to address only those issues.
- The Numbers Do Not Lie. With a little bit of discipline from the start of the case the Special Master, PSC and the Court will be armed with empirical date to substantiate or refute allegation of counsel participation, the level of participation, effort and result. Some of the items are objective and may require further analysis when the time comes to assess attorneys’ contribution. An experienced Special Master will know immediately after a simple investigation what task was assigned, the level of difficulty, the goal sought and the ultimate result. Just as lawyers knows their business, experienced judicial officials and neutrals have performed this task for years and know what a Court, and more importantly and Appellate Court, will need to assure affirmation of the Court’s decision.
- Forming a More Perfect Law Firm. You must have up front set of best practices for your “new firm” working together over the course of the next three years. Do you use a “firm” credit card just for this case? Do you rent mutual accommodations for distance travel? Do you look at outside funding or keep costs contained within the group? All decisions that must be explored up front.
- Let Your Special Master Be Your Judicial Guide. You are paying a Special Master for help and advice. If you view the Special master as another element you must have total control over, then you are wasting your money and their time. Neutral means just that. You may not always agree that the time or procedure followed is in perfect sync. Very few things in life are. But do not allow an experienced Special Master avoid making a perfectly cogent recommendation to the Judge just because you don’t 100 percent agree. Otherwise you have lost the value added to the recommendation by allowing the judge to rely on an independent voice.
Let the Special Master manage the time elements among the attorneys. Let the Special Master share the empirical data with all counsel so there are no questions regarding which firms are or are not doing the requisite work in the case. Let the Special Master speak with the Court about the fees on a quarterly basis and where the common benefit fund is headed. All these element do not involve the litigation of the case, which is your job.
The Special Master can track issues litigators need not address while in the throes of litigation. When it comes time to a settlement or win, after the good is accomplished make sure you do well be being adequately compensated without further litigation over counsel fees.
Hon. Marina Corodemus (Ret.) is a JAMS panelist and sought-after special master by Federal and State Courts involving class actions, mass torts, environmental contamination, natural resource damages, products liability, consumer fraud and serious aggregate litigation.