Individuals Within the Aggregate: Relationships, Representation, and Fees

Abstract

Over the past decades, aggregate litigation has become more common; through various statutory, rule-based, and informal means, judges and lawyers consolidate large groups of individual litigants and claims. The paradigm of a class action, however, continues to dominate the literature, and with it, the assumption that a single set of lead lawyers represent all of the plaintiffs in the assembled group. This article addresses the problems raised when, in contrast to that paradigm, aggregation brings together mass tort plaintiffs, some of whom come with individually-retained plaintiffs' attorneys (IRPAs), who perform tasks in addition to those done by a court-appointed plaintiffs' steering committee (PSC). Our central questions are about the roles of the many lawyers within the aggregate and the potential for policymakers to use procedural tools and the law of attorneys' fees to structure incentives to enhance the experience of individual litigants within the aggregate. Animating our interest is the view that, in addition to effectuating outcomes, litigation is also a means by which to express political and social relationships. What occurs within an aggregate formed for adjudicatory purposes is of moment for the polity.