The Ethics Behind Mass Torts | Michael Chhabra

There are a lot of cogs in the machine of tort law. Between a large number of plaintiffs, defendants that may consist of groups representing sizable corporations, and legal counsel for both sides, there are inevitably many individuals involved. Given that rules for ethics largely pertain to single plaintiffs and single events, navigating a mass tort can be daunting for law firms.

As with many other issues, transparency is key. A small minority of mass tort cases make it to trial, with many settling out of court beforehand. In this case, a lawyer must communicate with every single one of their clients and disclose the amount that they would receive in the event of a settlement. For that matter, differing levels of severity among victims in mass tort cases can make the questions of figuring out compensation all the more difficult. It’s up to lawyers to avoid any conflicts of interest here by ensuring that they serve each client equally effectively, regardless of the perceived value of their individual cases.

Indeed, attorneys are prohibited from representing any client is there is a potential conflict of interest unless the client in question provides written consent. For mass tort cases, this requires consent on part of every client involved indicating that they are aware of other clients. Oftentimes, these cases can result in what is called an aggregate settlement in which the defendant pays out a sum intended to be distributed among plaintiffs. This also necessitates transparency, with all claims disclosed and all clients consenting. Compounding this is the fact that dozens or hundreds of attorneys can represent plaintiffs in a mass tort, each with the same processes to undergo.

However, aggregate settlements are not easy to resolve in their own right. Class-action settlements can be divvied out in a consistent manner determined by the court and every plaintiff is assumed to have similar or equal damages. With tort cases, damages may not be equal among all plaintiffs involved. This creates the challenge of having to work to figure out a system for distributing a settlement among them. While it would be ideal to resolve a mass tort on an individual basis, this is simply not practical. Often, it comes down to the defendant to lay out terms of what degrees of injury might look like, doling out an aggregate settlement based on what they come up with. It then falls to lawyers and firms to distribute it to their clients. The more unambiguous the record of injury, the better—medical documents are a necessity for issues such as these.

But with injuries resulting from defective medical devices or even health issues as a result of the tobacco industry, tort litigation is necessary to consolidate similar cases and make a stand against larger corporations. In these cases, it is necessary to tackle the hurdles of the tort process to ensure fair compensation for all clients. Open communication with clients can be daunting in of itself, but it’s often necessary to ensure that a case is handled in an ethical manner.

In the end, clients should have all of the information that they need to make a sound decision on whether to accept a settlement, knowing the process behind which compensation is determined. It also falls to the lawyers and firms to not prioritize clients based on potential value and ensure fairness and respect for all.

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