Korva is a scroll of the internet’s best ideas.
Try a dozen cases, settle thousands
Choosing the cases
Choosing which cases to try is incredibly contentious. At one time the plaintiffs picked, then the defendants picked, then each side picked one. That has evolved into random sampling, and now both sides typically pick from the cases that were randomly selected. The reason it matters is that trying only cases one side wins easily doesn't generate the data a settlement of thousands of cases needs.
How the trials play out
The trials rarely run their full course. A few cases get knocked out, and if the lawyers on both sides are smart, they start talking. In Vioxx and in the 3M Combat Arms litigation, 15 or 16 plaintiff cases were tried. In the NFL concussion litigation, no case was tried at all, and the money that trials would have cost went into a compensation system for retired players.
Working up every case
The firm's approach for 25 years has been to work up every single case for trial, not for settlement. A case that is worked up for trial settles at the best values.
Why are test trials named after a sheep?
A bellwether is the castrated ram that leads a flock, usually wearing a bell around its neck. Shepherds could track the flock by the sound and trust that the others would follow the leader. Centuries ago English speakers began using the word for anything that signals where a trend is headed. Mass tort lawyers borrowed it because the outcomes of the chosen trials are meant to point to where the other cases are going.
Why can't one verdict decide thousands of cases?
Each plaintiff in a mass tort has an individual claim, and defendants are entitled to contest each one. In Cimino v. Raymark Industries in 1998, the Fifth Circuit threw out a plan that used results from about 160 sample asbestos cases to set damages for more than 2,000 others. The court said that approach denied the defendants a trial on each claim. Bellwether verdicts inform settlement talks but do not bind the remaining plaintiffs.
More from Original Jurisdiction
