When lawyers first begin to represent clients in mass tort cases, grow the number of mass tort cases they’re involved in, or increase the number of mass tort clients they represent, they often come to a stark realization. To effectively—and ethically—represent their clients, litigate such complex actions, and secure the results their clients deserve, they are going to need to devote people, technological resources, and strategic planning to effectively working up cases on behalf of a large number of clients.
Sure, lawyers might have paralegals on staff who can readily apply their case support skills in the mass tort context (e.g., sourcing and processing medical records), but rarely do they have enough people in-house to request and process medical records for thousands of clients in an orderly fashion, consistently and strategically engage with those thousands of clients, plan for and execute on town hall or one-on-one meetings with those clients, or tackle many other support tasks that will be required when managing such sprawling and complex litigation.
Some larger firms eventually build this infrastructure themselves because their size, experience with mass torts, and projected involvement in future mass torts have led them to make the investment in the people, resources, and know-how to do so. Even these firms often struggle to scale up and down as mass tort litigation demands, while most other firms handling mass torts outsource at least some litigation support tasks because they lack these three things, which jeopardizes their ability to represent their clients effectively, efficiently, and at scale.
In our experience, when lawyers consider outsourcing some or all of their mass tort litigation support needs, they approach the process with several misconceptions. These misconceptions often hold them back from growing their mass tort practices because they limit their ability to see how quickly and broadly they can build those practices.
Here are the four misconceptions about outsourcing mass tort litigation support services we see most often.
“We’ll Lose Control Over Our Claims”
It’s natural for lawyers to worry that by bringing on outside assistance to help manage their cases they’ll give up control over their claims, whether by giving up control over much of the direct communication with clients, the collection and review of supporting documentation, or the technology to monitor progress.
In a sense, they’re right. The litigation support provider would ordinarily handle the “doing” of those tasks. But what lawyers give up in the form of performance of these routine tasks, they gain in improved consistency and transparency of the data concerning their cases and their clients, which leads to greater control over litigation strategy.
Most mass tort litigation support providers will work with their law firm clients to process data about the firms’ clients and their claims and then create dashboards that can provide crucial information at a moment’s notice and in near real-time. At a glance, lawyers can know, for example:
- How many thousands of clients for which they have ordered medical records
- How many records they have received, how many have been reviewed, and how many clients’ diagnoses qualify for legal relief
- How many clients qualify for specific injury tiers, and the estimated value of each tier
- How many claimants are subject to government or private healthcare liens, and the estimated amount of those liens
The data processed by outside providers and reported in intuitive dashboards not only provides insights about the merits of clients’ claims, but also about how best to engage with them. For example, lawyers can easily see how many of their clients are on Pacific Time, so client relations staff don’t call them at 7:00 am local time. Or, they can easily see how many claimants fall into a demographic that is unlikely to respond to certain communications channels. Sending a message through Snapchat might be an effective way to reach an 18- to 25-year-old demographic, but is unlikely to yield much engagement from the 75-and-above age group.
Armed with rich engagement information at their fingertips, lawyers have greater control—not less—over their clients’ mass tort claims.
“This will cost more than if we do it in-house”
Whenever the question of outsourcing services to a vendor comes up, lawyers often assume they can handle those same tasks in-house at a lower cost. But as any lawyer whose firm has scaled up its people, technology, and overall infrastructure can tell you, there will always be hidden costs of doing the work in-house that don’t remain hidden for very long.
These costs include the cost of finding and hiring (and perhaps eventually replacing) staff, the cost to purchase and maintain hardware and software, the cost of dealing with a workplace culture shift as staff is flexed up and down that can engender change for the worse, the additional costs that come with expanding the size of a law firm, and the cost of learning the hard way how to do or not to do certain things.
There’s also the cost of overextending a firm’s resources if its plans change. For lawyers considering beginning or expanding a mass tort practice, building that practice is costly and challenging enough, but what happens if mass torts turn out not to be a good fit? When working with an outside provider, lawyers can easily pause the relationship. But if they chose to scale up their in-house resources instead, they’ll have to consider laying off staff and downsizing technology and office space.
Additionally, many lawyers with mass torts practices purchase leads from lead generation companies. Those companies’ contracts often allow refunds for leads if the lawyer determines they are not viable within a certain period. Mass tort litigation support providers can test the viability of leads’ claims more quickly than lawyers can themselves. When lawyers outsource mass tort litigation support services, they may increase the chances of recouping fees they’ve paid for unworkable leads.
“We can do this better than outside providers can”
Attorneys, better than most professionals, know the benefits of working with specialists. Most wouldn’t dare refer a birth injury case to a personal injury attorney who only handles slip and fall cases. Yet some lawyers believe they can execute on the various aspects of mass tort litigation support better than the specialists who do so for dozens or hundreds of law firm clients, and thus hundreds of thousands (or even millions) of claimants, at once. The fact is, even when firms bring on dedicated paralegals and other administrative staff, along with all the necessary accompanying infrastructure, they lack the knowledge and experience needed to effectively execute complex operational processes at scale.
These providers not only understand both the art of litigation support and the science of it, but they are also familiar with operational best practices. Serving many law firms at once gives these providers an opportunity to see what works on a large scale and what doesn’t, and to apply the most effective technologies. Few law firm personnel will have these same insights.
In addition, many providers staff specialists like paralegals, data scientists, medical record administrators, accountants, and physicians who can focus on core responsibilities in a more knowledgeable and efficient manner than law firm personnel who are required to be juggling multiple, and often disparate, responsibilities.
“We can only get in the mass torts game by teaming up with a larger firm”
Even when supported by an outside mass tort litigation support company, some lawyers believe the only way they can build a mass tort practice is by teaming up with a larger law firm because they’ll need the resources of that larger firm to service their clients and prosecute their claims. In other words, these lawyers are concerned that outside providers cannot assist them with the full range of services they’ll need to maintain a mass tort practice.
While there are companies out there that only handle medical record processing, client portals, or marketing, many mass tort litigation support companies can provide law firms with the administrative help they need to build and effectively run a mass tort practice without having to team up and split fees with a larger mass tort firm. These companies help small law firms develop a mass torts practice on par with practices at larger firms. And when smaller firms work with outside providers to vet potential clients’ cases and therefore sign only the strongest cases, they’ll be in a better position if they want to approach larger law firms to co-counsel with.
A viable way to build or expand a mass tort practice
Mass tort litigation is complex from both the legal and administrative perspectives. Lawyers looking to enter the mass torts arena or expand their mass torts caseload without having to defer to a larger law firm face a decision. Do they build the infrastructure themselves or do they work with an outside mass tort litigation support provider?
While some lawyers might view this question as one about dollars and cents, it’s really about building a practice that helps people hurt through no fault of their own and often at the hands of monolithic companies. The more effectively and efficiently mass tort lawyers can do this, the better off their clients and society at large will be and the better off those lawyers will be.
For those lawyers contemplating seeking the assistance of a mass tort litigation support provider, it is important to separate fact from fiction—as we’ve done above—so they can make educated decisions about how to build and grow mass tort practices that could shape the future of their law firms for decades to come.
Mark Eveland and Jac Calabro are the chief executive officer and senior director of business development & sales, respectively, at Verus, a leading mass tort litigation support services firm. They can be reached at meveland@verusllc.com or jcalabro@verusllc.com.
Reprinted with permission from the May 8, 2023 edition of the New York Law Journal © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.
