A little while ago, Blawgletter asked Should Class Action Plaintiffs Designate "Trial Only" Counsel? Today we got an answer.
Steve Foster commented:
Well, I’m a little late in starting a discourse, but here goes:
Disclosure: I’m a plaintiff’s lawyer.
It seems to me that the number one job of a defense lawyer is to manage risk for his client.
Therefore, if bringing in "trial only" counsel increases the risk of an unfavorable outcome for the defendant, it is desirable and in the plaintiffs’ best interests (so long as the cost for "trial only" counsel is less than their benefit to the class).
If the original class counsel cannot maximize the value of a case because of a perceived lack of trial ability, then associating with "trial only" is not only a desirable tactic, it’s probably ethically required by the class counsel’s fiduciary duty to the class.
Wow! Steve nails the very issue at which we tried to get — and at which the defense lawyers who suggested "trial only" counsel for class actions hinted: Managing risk (defense concern) v. increasing it (plaintiffs’ desire).
At least after a beer or three, most class action plaintiffs lawyers will admit that they don’t try a great many cases and that once they beat a motion to dismiss or motion for summary judgment the defendants prove willing, and possibly anxious, to settle.
But wouldn’t designating a current-day Clarence Darrow, who does try (and win!) a lot of cases, as trial only counsel ratchet up the pressure on the risk-managing defense lawyer and his risk-averse client? Steve says — and we agree — absolutely!
But Steve also points out that the class ought not overpay for the commitment to try the case. What’s the right amount? The defense counsel whose observations started this discussion suggested that designating a formidable trial lawyer as trial only counsel would increase the pretrial settlement value of a case by 10 percent. That sounds reasonable to us.
We’ll leave to the future questions about whether courts should appoint as lead counsel lawyers or law firms that’ve never actually tried a class action case — a likely majority. Suffice for now to say that, on average, the mere act of appointing — or retaining — a genuine trial lawyer in a class action makes the case more valuable and benefits the class without increasing the cost of representation to the class members.
Thank you, Steve, for weighing in.