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As predictable as crabgrass in July was this sentence in The New York Times‘ next-day coverage of Firestone’s announcement of its gigantic tire recall on August 9: “The American Trial Lawyers Association has organized a litigation group around the Firestone tires, in which lawyers representing plaintiffs around the country can compare notes.” There they go again, those mass tort-mongering plaintiffs’ lawyers. By design, ATLA’s litigation groups are closed to outsiders. The trial lawyers try to keep secret what industries the groups target, who belongs to them, who runs them. It’s easy to imagine, particularly if one is of a tort reformist bent, that “ATLA litigation group” is just a euphemism for a cabal of French-cuffed plaintiffs lawyers plotting their next billion-dollar foray. The very announcement of the formation of a dread “ATLA litigation group” seems like it ought to be enough to send defendants lunging for their checkbooks. Right? Wrong, or at least wrong far more often than not. Even the Timesgot it wrong: Though the ATLA tire litigation group has had a notable spike in membership in the last year, the group has actually been around since 1983, when it was founded to capitalize on the wave of litigation that followed Firestone’s last tire recall. About 20 lawyers have belonged to the group for the past decade, handling an assortment of obscure tread separation and tire-rim mismatch cases. Most of the 61 litigation groups operating under the aegis of the Association of Trial Lawyers of America are a lot like the tire group was until August, chugging along beneath the consciousness of everyone but the plaintiffs’ lawyers who belong to them and the defense lawyers in the industries they target. For every fen-phen or breast implant group that explodes into existence, helps prompt a multibillion-dollar mass settlement, and then flames out, there are two-dozen workaday crews, like the automatic door group, or the breast cancer group, or the interstate trucking group [see list, below]. Litigation groups tend to attract a core of devoted members, lawyers who dedicate their careers to the arcana of nailgun injuries or construction crane disasters. Group members pay one-time or annual fees (it’s $250 for a lifetime membership in the construction site accidents group, for instance) to participate in the exchange of documents, briefs, depositions, expert testimony, and general plaintiffs’-side lore with others of their specialty. “It levels the playing field,” says Boston trial lawyer Michael Hugo of the Law Offices of Hugo & Pollack, a member of the vaccines group since its founding in 1982. “Defense lawyers talk to each other all the time. Litigation groups do away with the island factor for us.” Talk to litigation group members, and you’ll hear plenty of stories like the one told by Robert Jenner of Silver Spring, Maryland’s Greenberg & Bederman, who belongs to several groups. Last year Jenner took on a pharmacy liability case, a new area for him. He called the chairman of ATLA’s pharmacy group and outlined the facts of his suit. The chairman sent him documents that led Jenner to investigate Arizona’s pharmacy regulations. “It changed my whole case,” Jenner says. “If I do win it, it will be largely because of what he sent me.” For all the ordinariness of the proceedings, ATLA does keep the litigation groups cloaked in enigma. Group chairmen, for instance, are not supposed to identify themselves as such in public, and journalists can only get their names from ATLA by agreeing not to quote them as chairmen. Such Kremlinesque secrecy is intended to prevent chairmen from using their positions for self-promotion or client solicitation. ATLA, which has been known to give publicity-hungry litigation group chairmen the boot, is quite sensitive about its image, after all. And the secrecy extends much further: The association does not post the list of litigation groups on its public Web site. Only full ATLA members (plaintiffs’-side lawyers who pay anywhere from $50 to $2,500 in annual dues, depending on how far out of law school they are and how many frills they want with their membership) can join litigation groups. Several groups require prospective members to sign affidavits attesting to their plaintiffs’-side allegiance; the chairmen of a couple of groups even require their members to sign affidavits swearing that they believe the targeted products are dangerous. All of these spy-versus-spy tactics are to deter enemy infiltration. The formation of litigation groups doesn’t usually come as a surprise to defendants; ATLA says that groups aren’t typically established until a critical mass of lawyers has already filed suits or identified a potentially lucrative new target. Look at two of this year’s six newly created groups: The drugs Rezulin and Propulsid have both had well-publicized regulatory problems. But just because defendants are not surprised doesn’t mean they don’t want to know what the trial lawyers are talking about. The breast implant litigation group, for instance, which included more than 2,000 bickering plaintiffs’ lawyers at its peak in the mid-1990s, was plagued by spies, according to Hugo, the group’s onetime chairman. Not only was one firm (“a defense firm from a southwestern state — that’s all I’ll say”) firmly disinvited from group meetings, he says, but transcripts of secret meetings supposedly circulated where they shouldn’t have. One litigation group chairman even tells of recognizing the general counsel of a lead defendant sitting in the audience at a presentation his group hosted at an ATLA convention several years ago. The wily trial lawyers, at least in his telling, turned the incident to their advantage, asking the general counsel to stand and be captured on tape after listening to a speech on the dangers of his product. That way, the group chairman explains with a laugh, the company would have a hard time claiming in a punitive damages trial that the company didn’t know its product was injuring people. (The defense lawyer referred calls to his outside counsel, who says the general counsel does not recall being asked to identify himself at the public presentation.) Do litigation groups flush out plaintiffs who wouldn’t otherwise file suits? The trial lawyers say quite the opposite is true: The experience of litigation group members means shaky cases don’t get filed. “There’s only a case if there’s a defect and an injury out there,” says David Steelman, executive director of the attorney’s information exchange group, an ATLA group devoted to all manner of land and water vehicles. In this age of crisis-communications PR, Steelman’s claim has the benefit of looking more virtuous than opportunistic — at least for a while. After all, his group encompasses ATLA’s tire litigation group, now at 60 members and climbing, all of them busy suing Bridgestone/Firestone, Inc., around the country.
Team ATLA A sampling of active litigation groups AIDS Bad Faith Insurance Benzene/Leukemia Birth Defect Casino Gaming Chorionic Villus Sampling (CVS) (birth defect testing) Computer Vendor Liability Firearms and Ammunition Funeral Services Herbicide and Pesticide Inadequate Security and its subgroup, Walmart Task Force Lead Paint Liquor Liability Nursing Homes Parlodel (a lactation suppressant) Stadol (a pain reliever) Steroids Tabloid Outrage Tap Water Burns Truck Underride (truck safety guards) Newly Approved Groups Firefighter and EMS Hearing Loss Allercare, subgroup of Herbicides and Pesticides Laser Eye Surgery Malpractice Methyl Tertiary Butyl Ether (a gasoline additive) Propulsid (a heartburn medication) Rezulin (a diabetes medication)

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