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Mass Tort Lawyers Look to Master ‘Art’ of Litigation in Pandemic

June 29, 2020, 9:31 AM

Mass tort lawyers who typically like a hands-on approach to complex litigation have been forced to fight court battles remotely during Covid-19, but so far they say the change isn’t impacting their bottom lines.

“Across the firm, our revenues have been as good or better” than before the pandemic, said Jennifer Altman, a partner and mass tort lawyer with Pillsbury in Miami. Altman called that development “surprising,” given trial delays and restrictions on travel time that attorneys usually bill to their clients.

Pillsbury, which reportedly cut partner draws and attorney salaries in April, isn’t the only firm that says it has managed to remain profitable during an economic downturn that had many scrambling to pinch pennies. A wide range of law firms are trimming their ranks and reducing their office space footprints, according to a recent survey by legal consultancy Altman Weil.

“I think there was a natural expectation that the hours would flatten out for people, but that did not materialize,” Altman said.

Mass tort lawyers—who typically handle litigation over product liability, prescription drugs, and toxic contamination that can include tens of thousands of plaintiffs and years of drawn-out court battles—are also taking similar steps to protect their cash flow. But they face specific day-to-day challenges during the pandemic because they usually rely more heavily on in-person contact for gathering critical information while developing those complex cases, Altman said.

Being a mass tort attorney means lots of unannounced knocking on doors and surprise interviews with possible witnesses, not to mention sifting through reams of documents. It also means using court appearances to make cases to judges and with juries and preparing cross-examinations to try to poke holes in opponents’ evidence.

“Part of what we do is an art and part of it is a science,” said Altman, who works on both the defense and plaintiff sides.

“The art part is reading someone’s body language” during depositions, hearings, and trials, she added. “And you’re not going to get that on a Zoom call in the same way if you were physically in a room with them. Is their foot jiggling? Are they nervous? You’re trained to observe all of their body language.”

Remote court hearings also make it tougher to connect with judges, which is critical in mass torts, said Richard Meadow, the national mass tort leader for the Lanier Law Firm.

On a remote call “you just listen, and 90% of the time you are on mute, and you can’t approach the bench or raise questions,” said Meadow, who represents plaintiffs.

Who Needs an Office?

The pandemic has brought changes, primarily through remote work, that will likely save money for firms on both sides of the aisle.

The shift to video conferencing is “changing the financial dynamic of big firms,” said Hunter Shkolnik, a partner with Napoli Shkolnik. “Big firms are having to be more lean.”

In many cases, that’s expected to lead to downsizing office space.

“People have realized that we can do stuff at home; there isn’t as much need for brick and mortar office spaces,” said Annesley DeGaris, a founding partner of plaintiff’s firm DeGaris Wright McCall who worked on products liability lawsuits against medical device manufacturers Stryker Corp. and Depuy Synthes, as well as antitrust litigation against Blue Cross Blue Shield, among other cases.

Plaintiff’s firms, which typically are paid at the end of a case and only if they win, are also saving cash because they’re not constantly paying up-front for cross-country travel to juggle multiple cases, Meadow said.

“Nobody misses the airports and the commutes,” he added. “Less frequent court appearances, less travel means less expenses to work up the case.”

Court closures and delays in trials can also translate into delayed paydays for plaintiff’s firms. But Shkolnik said that doesn’t mean either side is more likely to talk settlement.

“A lot of our trials were postponed to next year,” Meadow said. “In the short term, maybe we won’t realize the same income or resolution, but over the long-haul it will even out.”

Slow Downs

Mass tort litigation has grown more sluggish as court deadlines move back.

“Litigation continues, but there are many things that are impossible to do in the setting of a pandemic, like a trial,” said John DeBoy, special counsel at Covington & Burling LLP, who works on the defense side.

Some judges have started scheduling trials to be conducted via video conferencing, posing a challenge because the courtroom setting is an important part of winning a mass tort claim, Altman said

“There’s a lot lost in the translation,” she said. “How do you communicate to a jury by Zoom or WebEx?”

DeBoy has seen some of his trials pushed off. Like many mass tort lawyers, he’s hoping the world will be back to normal in time for them to be held in person.

After the pandemic, “we’ll return to a strong preference of in-court proceedings,” he said, noting that other parts of the job, including some court conferences, may continue to be held remotely after Covid-19 is a distant memory.

But that doesn’t mean massive legal battles are going away anytime soon.

“You’re still going to have companies that are fighting with each other over major things,” said Markenzy Lapointe, a partner at Pillsbury. “There may have been a slight lull for some, but a lot of us remain very busy.”

To contact the reporter on this story: Valerie Bauman in Washington at vbauman@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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