Mass tort litigation is a lawsuit that combines large numbers of individual personal injury claims, often thousands of them, into a single legal action. These litigations are creating huge profits for attorneys and the wealthy investors who back their suits. The “Trial Lawyer Playbook” sheds light on the basic elements that enable the actors within this system to make it a lucrative practice.
The Playbook illustrates how some lawyers, like football players in a game, use strategies or “plays” to squeeze money from defendant corporations. The attorneys have targeted these corporations for legal action and then set their plans in motion. Simple as they seem, they have generated huge sums of money for attorneys and investors seeking a nice return.
The sheer number of claimants in many of these cases can make it highly challenging for defendants and the courts to distinguish between legitimate claims and those that are baseless. That works to the plaintiff attorneys’ advantage. With large numbers of claims, the costs of mounting a successful legal defense skyrocket. It is often in the defendants’ best interests to settle and pay an exorbitant sum, regardless of their innocence or guilt.
Mass tort litigations can also cost small mom-and-pop stores large amounts of money. These excessive lawsuits result in billions of dollars lost in economic activity annually. As a result, this hinders employment opportunities and increases the costs of goods and services for consumers.
One of the tactics outlined in the Playbook, the Finance Play, refers to third-party litigation funding. Hedge funds, endowments and other money managers have found that providing the financial backing for mass torts in exchange for a sizable share of the proceeds can be an excellent, non-market-related, investment opportunity. This up-front financing doesn’t just fund lawsuits, it creates them.
When plaintiff attorneys don’t have to worry about coming up with the capital needed to support mass tort litigation, they can get more creative with the factual basis for their claims. Third-party litigation funding has directly contributed to the proliferation of frivolous and baseless suits.
Much of the money provided by outside investors is used to finance the huge advertising campaigns attorneys run on television and the internet. This is to help source individual plaintiffs to create the problems of scale for the defendants. This is what’s known as the Advertising Play. The often intentionally misleading, vague and fear-inducing ads attract large numbers of potential clients, including some who are seeking a quick payday instead of fair compensation for an actual injury. In 2024, $2.5 billion was spent on nearly 27 million television spots advertising legal services.
The final play, the Junk Science Play, describes the common practice of lending faux legitimacy to these claims. Plaintiffs will source dubious and paid-for testimony from self-proclaimed experts on the issue at the root of a lawsuit. Junk science has been used to mount well-known mass tort litigations, most famously at the center of the case against RoundUp weed killer. When juries and judges are presented with a steady stream of incomplete and inaccurate testimony, it becomes difficult, if not impossible, for them to reach well-informed and just verdicts.
The nature of the Trial Lawyer Playbook and other efforts to expose the tactics behind mass tort litigations have led to efforts at the state level and in Congress to address this issue. Strategies like shifting the standards for allowing plaintiff attorneys to consolidate cases have proven promising. This would help prevent profit-driven funders and attorneys from needlessly clogging up the justice system. More robust evidentiary standards and education efforts would help nullify the effect of junk science.
At a time when many are wondering how to give America’s business community a boost, removing this proverbial anvil from over their heads would be a boost.
There are concrete costs associated with these frivolous lawsuits, but even more unseen ones arise from having this looming uncertainty. Lawmakers at all levels would be foolish not to make this a priority.