As I look over my notes from the recent Mass Torts Made Perfect Conference in Las Vegas, NV I'm struck by how much the landscape has changed in the mass tort's world, and by the new innovations and approaches that many trial lawyers are contemplating using in the next few years. Some of my observations:
- Attorney Mike Papantonio continues to have unparalleled energy and passion for the future of mass torts. In a call to action to trial lawyers and citizens he discussed the implications of the "tort reform" campaign that has been waged over the last 20 years, and how the national media has largely been co-opted by conservative business elements. You can learn more about the organization, their seminars and tools by clicking here. I'm encouraged by their over all strategy to begin utilizing the internet and alternative media to begin breaking some of the strangle hold that major news organizations have over the types of stories broadcast on radio, TV and Cable networks, and beginning to broadcast and publish stories on the disgrace of drug company marketing, med mal tort reform limits and other uncovered news.
- Strolling through the vendor area and looking at who was there and what they were offering, it was hard not to notice the total absence of structured settlement firms. Other then Matt Garrettson's firm and Millennium Settlements there wasn't another structured settlement firm exhibiting, where in past years you'd see James Street, Ringler Associates, EPS brokers, banks and planning firms and other independents. What this tells me is that other then the business of Medicare lien resolution, which Garrettson pretty much pioneered and holds most of the market share, and the new products and services being rolled out by Millennium to try and capture market share in future Mass Torts, there still hasn't been a lot of money made in Mass Torts by structured settlement firms, outside of asbestos and processing liens or doing fee work. To my veteran eye, it doesn't look that there is a large amount of premium looming on the horizon given the current status of Vioxx and other national Mass Torts and the current field is still in the planting process, not the harvesting stage.
- The most aggressive vendors, and the largest number of exhibitors, were firms that specialize in legal finance and case financing. While you might argue that it is a sign of health that lenders are willing to venture into this area in great numbers, it gives me pause when a lot of the deals come with strings attached. My only word of caution to trial lawyers is to not get yourself in a situation where your banker essentially finances and controls your litigation by the terms of your agreement, and definitely don't get into deals where your loan is tied to a back end promise to place client money or investments with the lending entity. It is in my opinion a terrible conflict of interest and one that you should avoid. What you do with your own money is your business.
- The biggest news of the meeting got relatively little play due to time constraints, and that was the talk presented by my friend Attorney Jan Schlichtmann of the Civil Action Center on the use of trusts on the front end of a multi-litigant case, such as the looming Procrit, Epogen and Aranesp disasters, to consolidate claims, organize information and speed negotiation with defendants. In a separate break out session on Thursday, Attorney's Rick Kuykendall, Roberta Ashkin, Jan Schlichtmann, along with noted tax attorney Robert Wood and myself, Mark Wahlstrom, laid out in greater detail the methodology and the tax and legal basis for using these trusts in a unique fashion that could have a significant impact on mass tort cases. This week a major news event on a Qui Tam, or Whistle blower case, should be a big story in the business press, with the use of these trusts being featured as an integral part of that strategy. I'll be blogging on these once the story is published, but this innovation has the potential of changing the method of collecting together claimants on mass torts and speeding both negotiation, discovery, case management and ultimately client pay outs.
- The LBN film team was there both days and shot some great interviews with some of the nations leading trial lawyers and experts. You can expect to see them later this week as we release them here on The Settlement Channel.
In summary, Mass Torts once huge potential has, for the settlement community, been largely a dry hole as the impact of national and state tort reform has begun to take hold. However, the pendulum that 20 years ago was firmly on the left, and that in the following 20 years swung all the way back to the right, has in my opinion peaked and begun to swing back to the center. Our nation, which was founded on the principals of property rights, access to the courts and individual freedoms is not going to tolerate for long the smothering effects of tort reform limits, or access to courts; over rule by higher courts stuffed with appointed adversaries to the common citizen, or the callous calculation of drug companies to litigate case after case to crush the will of people damaged by their knowingly dangerous products. Just as America won't stand for the scandals that are being exposed in the Asbestos litigation and in the Phen Fen case in KY, excess of either extreme, right or left, will be corrected. People want fairness, openness, access to courts and the right to a fair jury trial, and they will do what it takes to make sure they have it, even if change happens slowly.
It is a time for innovation, a commitment to finding methods that remove the excesses of the trial bar by creating a transparent process for litigation and settlement of claims, as well as offering defendants the opportunity to act as responsible corporate citizens in identifying dangerous products quickly and compensating the truly injured fairly. Our best days are ahead of us in both the settlement and legal community, but only if we appeal to our better nature and work in a cooperative fashion to protect the broken, injured, orphaned and ill of our society.