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Lead counsel chosen by beauty contest
Lawyers choosing leaders
Lawyers used to settle it among themselves. The plaintiff lawyers got in a room and proposed a slate with a lead counsel, a steering committee, and an executive committee, and the judge would often just sign it. Over two or three decades, judges began to institutionalize their experiences and share them with the multi-district litigation panel and with other judges. One judge decides he didn't like plaintiffs organizing themselves and wants to choose leaders based on experience and qualities.
The judge's contest
The result is a virtual law firm, with the judge selecting lawyers from many firms to lead the case. In the Depo-Provera litigation against Pfizer, applicants submitted a declaration of their experience and qualities. Then, over a day, each one went in and pitched the court for two or three minutes, and the judge decided who the lead counsel and the others would be.
Why judges pick
Judges who pick avoid the backroom wrangling between plaintiffs' lawyers and the hard feelings left when someone doesn't get a position. In class actions, judges pick more often than in mass torts. Some courts still let class counsel self-organize, but that practice is going by the wayside.
Why do federal rules tell judges to pick counsel?
Federal Rule of Civil Procedure 23(g), added in 2003, requires a judge to appoint class counsel and to weigh the work counsel has done, their experience, their knowledge of the law, and the resources they will commit. The rule applies to class actions, which is one reason judges pick leaders there more often than in mass torts. For mass torts, judges rely on their case management authority and on guidance in the Manual for Complex Litigation, published by the Federal Judicial Center. That manual describes leadership structures such as lead counsel, liaison counsel, and steering committees.
How do steering committees divide the work?
A judge typically sets out the roles in a case management order. Lead counsel coordinates with the court and with the defendants, while committees and subcommittees take on areas such as discovery, expert witnesses, and trial preparation. Members keep records of their time and costs. Those records are later reviewed when the court decides who receives payment from the common benefit fund.
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