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Lena Nelson and Jessica Seigel, Co-Presidents of the Stanford’s Plaintiffs’ Lawyers Association (PLA), here. We are guest posting this week to discuss PLA’s recent event co-hosted with the Deborah L. Rhode Center on the Legal Profession. The event, “Debunking the Myth of the Ambulance Chaser,” featured two plaintiff-side attorneys: Alexandra Walsh, JD ‘01 (Walsh Law) and Kurt Arnold (Arnold & Itkin). Professor Nora Freeman Engstrom, co-director of the Center on the Legal Profession, moderated the event.

Plaintiffs’ lawyers have historically gotten a bad rap among lawyers and law students. Lawyers consistently rank the plaintiffs’ bar, and especially the personal injury bar, low in terms of professional prestige. On law school campuses, and especially those of the most elite law schools in the U.S., career services centers have typically ignored plaintiffs’ firms. Career offices often concentrate on corporate practice, funneling students to “big law,” while public interest centers concentrate on government and nonprofit career opportunities. Students seeking opportunities in plaintiff-side practice often find themselves in a career advising no-man’s land.

This is beginning to change. As students seek a more diverse range of career paths, they have begun to express interests in plaintiff-side practice as a “best-of-both-worlds” somewhere between the typical public interest/big law dichotomy. And, in recent years, plaintiff-side firms have started to interview students as part of On Campus Interview programs. But, despite these constructive changes, gaps in information, perception, and opportunities remain.

At the same time as student interest is growing, civil plaintiffs’ practice is itself underdoing several transformations. In 2019, multidistrict litigation (MDL) rose to dominate the federal civil docket, and MDLs continue to compose more than half of federal civil caseloads nationwide. This rise in MDLs presents new opportunities for plaintiffs’ lawyers to serve in leadership positions and to help achieve innovative and fair resolutions to major public health calamities and corporate misfeasance. Also notable is the rise in alternative methods of litigation finance. Although third-party financing is somewhat controversial, it also is possible that new financing options could lower the barrier to entry for new plaintiffs’ lawyers and/or mitigate the risk associated with the work. This could open the doors for interested parties typically nervous about taking on such risk to enter the practice. Diversity issues are endemic to the legal practice, and the plaintiffs’ bar is no exception. When capital and risk are prerequisites to practice, it is no surprise that these inequities have persisted in plaintiffs’ practice. But, plaintiffs’ firms are taking steps to improve the problem. And to some extent, these efforts are bearing out results: the number of women plaintiffs’ lawyers leading complex litigation is increasing.

PLA’s event fell at the center of these two trends: evolving aspects of plaintiff-side practice and growing student interest.

In response to these trends, we’ve focused on growing Stanford PLA this year and fostering discussions around the diverse opportunities, ongoing trends, and new frontiers in plaintiff side practice. PLA’s most recent event featured two plaintiffs’ attorneys, Kurt Arnold of Arnold & Itkin and Alex Walsh of Walsh Law. Kurt has had a long career representing plaintiffs as a personal injury trial lawyer, and Alex recently left a successful career as a corporate lawyer to represent plaintiffs in mass tort litigation.

The event focused on two key issues at the intersection of plaintiffs’ personal injury law and student interest in the practice—the roots of the bias against plaintiff side attorneys, including complaints about frivolous lawsuits, overly inclusive MDLs, and attorney advertising—and students’ growing interest in plaintiff side practice.

Addressing the “myth of the ambulance chaser,” Professor Engstrom asked the panelists where the root of the bias against plaintiff attorneys might come from. The answers among the panelists varied. Kurt focused on lawyers’ frequent discomfort with television advertising, which many view as sleazy and even predatory. But, as Professor Engstrom explained, scholarly research has actually shown that the public’s perception of these ads is quite positive. Indeed, those who file complaints regarding lawyer advertising are usually lawyers themselves. Our colleagues in the legal profession are the ones who view attorney advertising as distasteful. The broader public, including those who may have been harmed by a faulty medical device or a dangerous drug, typically appreciate these commercials. Without them, they may not know the root of their harm, or that they have avenues for redress. Attorney advertising might also expand access to the justice system—a necessary step in a system where most tort victims lack representation.

The panelists agreed that some of the bias may also come from a mix of judgment in both the legal community and the general public that plaintiffs’ attorneys are “only in it for the money.” Both have faced this bias, and it seems baked into the career services chasm noted above. Everyone in the discussion admitted that certainly, in limited instances, these stereotypes are true. For instance, in MDLs, one plaintiffs’ lawyer may represent thousands of clients. As the attorney’s client “inventory” grows, the attorney becomes further and further removed from their injured clients. Sometimes, the incentive to settle for plaintiff’s’ counsel is massive, potentially creating a gap between the attorney’s interests and those of their client

Yet, plaintiffs’ lawyers regularly resist these temptations.  Many plaintiffs’ attorneys are often client-oriented. Many seek to serve the public, helping those in need who have been harmed by large corporations—ranging from big oil companies to toy manufacturers to consumer product corporations. While this can be profitable work, few plaintiffs’ attorneys are in it for the money alone, including because the work comes with enormous risk: Working on a contingency can be profitable, but if those attorneys lose, they’ll never see a cent. The panel left one wrinkle undiscussed on this issue—while contingency fee work does allow plaintiffs’ attorneys to take on clients regardless of ability to pay, many attorneys can only take on those clients whose cases can pay. So on one hand, plaintiffs’ lawyers are restricted to the contingency fee model because their clients would otherwise not have representation. While on the other, it limits the cases that they will choose to take. have little choice but to use this model because their clients could not otherwise afford their services. Working on contingency is a massive risk, and one that might be easier for well-established firms. But for an attorney starting out on their own or a new firm trying to build, they can only take those cases that seem likely to yield a high reward.

And finally, the panelists discussed the idea that plaintiffs’ attorneys file frivolous lawsuits. The McDonald’s hot coffee case has branded the profession for (maybe) eternity. Kurt and Alex explained that, though there are few concerns about unmeritorious cases in single-client representation, there are some valid criticisms, particularly in large cases and MDLs. As noted above, as MDLs grow larger, the connection to each client shrinks. In one case against a pharmaceutical company, for example, a few plaintiffs were found to have never even taken the drug. To preserve the integrity of the MDL, plaintiffs’ attorneys must work diligently to screen clients, and the panelists agreed that the requisite thoroughness is sometimes missing.

The event also explored the reasons the panelists ventured into plaintiff side litigation, and why students seeking public interest careers might find joy in the space. Both attorneys talked about the client-focused nature of their work. They each explained the incredible feeling of connecting with a client, and more importantly, fighting tirelessly for that client’s relief. This ranged from single injury cases to mass torts.

Students, in turn, left the conversation understanding both how challenging and gratifying this practice can be. They also left with a deeper understanding of what personal injury practice actually entails: personal injury firms take on clients regardless of their ability to pay, investing in their case in the hopes of compensating them for their losses and deterring corporate actors from injuring others in the future. For students interested in public interest work, but for whom a firm might be the right fit, plaintiff side personal injury practice became a new option and opportunity.

The choice presented to law students has long been “big law” or traditional public interest (government/nonprofit) work. But, for some law students, plaintiff side work presents an opportunity to work in the public interest, broadly defined, while also finding more financial security. Similarly, for those interested in big law but bothered by the clientele or dismayed at the idea of spending their first few years after law school just digging through documents, plaintiff side practice offers an attractive alternative. Not only does the work more closely align with public interest practice, it also provides young attorneys the chance to do more exciting work sooner. Due to the firms’ smaller size, new attorneys at a plaintiff side firm have the chance to write key briefs, argue motions in court, and even go to trial in their first few years at the bar. For those students unexcited by their options in “big law” or concerned about the financial downsides of traditional public interest, this may just be a happy medium. It seems that the evolution of plaintiffs’ practice may coincide with a growing student interest in the “best-of-both-worlds” aspect of the practice.

In September 2022, the Rhode Center announced its Civil Justice Fellows Program by welcoming its inaugural group of student fellows.  As the work of the Rhode Center expanded dramatically over the past year, we saw multiple opportunities for students to engage in our cutting-edge work and contribute in critical ways to the research of the Center.  We are pleased to welcome seven extraordinary students in our first cohort and look forward to working with this group of truly outstanding students over the next year.

In joining the Center on the Legal Profession this year as Co-Directors, we continue to feel humbled and privileged. We are humbled at the work that has gone before and the steep challenge of following in Deborah Rhode’s footsteps, and we are so privileged to work on issues that matter, and to learn from so many on the cutting edge of defining how law is practiced—and how it should be practiced—in the modern age.

In this newsletter, we have shared excerpts of just a handful of the dozens of remembrances that flowed after Deborah’s tragic death, with more available online. In these touching tributes, you see the many and important roles that Deborah played for the people around her: inspiring teacher, transformative scholar, generous mentor, loyal friend. We’ll have a further chance to honor her legacy and remember her remarkable life with a series of panels on October 15th, and a Memorial Service on October 16th.

As you’ll see in the pages that follow, the CLP has accomplished a huge amount this year, despite the difficult transition and persistent public health challenges. We continue to play a central role driving forward efforts nationwide and in California to reform the regulation of legal services to promote innovation and access to justice. We’ve worked to strengthen legal education by engaging with the ABA on the incentives facing law schools, and we we’ve also focused inward, helping to make Stanford a model for training lawyers in the digital age. And we’ve focused—and will continue to focus—on key questions at the intersection of technology and law, exploring how technology will transform the civil justice system, with particular attention to ensuring that technology makes the system fairer and does not exacerbate existing problems of inequality and access.

We’ll be pursuing an even more ambitious agenda going forward, and so we’ll need help. To that end, we’re thrilled that our former Executive Director, Lucy Ricca, will be rejoining the Center as Director of Policy and Programs, and longtime Advisory Forum member Mark Chandler will join the Center as a Senior Fellow. We’re also thrilled that Shanin Specter and Alexandra Walsh—two of the nation’s very top trial lawyers—are joining the Advisory Forum to add their unique experiences and insight.

Next year, we will continue—and will continue to expand—on this critical work. Among other activities, Mark Chandler will lead an important project to simplify and unify filing requirements as a way to spur tech-based innovation in civil justice areas where self-represented litigants too often suffer acute access challenges. We will hold a conference with access-to-justice scholars and policymakers on legal services regulation. We will run a Policy Lab to answer pressing questions related to regulatory reform. We will bring together lawyers, judges and scholars to discuss urgent issues in multidistrict litigation, including how to improve the experience of individual litigants. And, in concert with the Federal Judicial Center, we will hold a workshop for federal judges on Artificial Intelligence and the law.

We are so grateful for all of you who continue to engage with, support, challenge, and strengthen our work, and we welcome your thoughts.

On May 26, 2021, Nora Freeman Engstrom, Ernest W. McFarland Professor of Law and Co-Director of the Stanford Center on the Legal Profession, was honored with Berkeley Law’s Civil Justice Research Initiative’s inaugural Best Article prize for “The Lessons of Lone Pine,” published in the Yale Law Journal.

Originating in a toxic-tort case in New Jersey about contamination from the Lone Pine landfill, Lone Pine orders have been used to manage cases by judges in many of the major mass-tort multidistrict litigations of the last few decades.  Designed to weed out spurious claims early, these orders require plaintiffs to come forward with prima facie injury, exposure and causation by a date certain – or else face an early and unceremonious dismissal.  In the piece, Engstrom questions the conventional wisdom lauding Lone Pine orders and uses a deep exploration of their use to illustrate broader currents that are quietly transforming contemporary civil litigation. This Article is emblematic of Engstrom’s work on the day-to-day operation of the civil justice system and her focus on thorny issues at the intersection of tort law, ethics and complex litigation.

Engstrom has also published a companion piece, titled “Lone Pine Orders: A Critical Examination and Empirical Analysis,” in the University of Pennsylvania Law Review (co-authored with her research assistant, Amos Espeland).  And with the help of SLS’s terrific library staff, Engstrom has created a national, searchable repository of Lone Pine orders, to promote future study and analysis.  (Because the orders are typically unpublished, before Engstrom’s work, they existed beneath the radar, and research on them was difficult.)

Building off this work, the Center is co-sponsoring with Berkeley’s Center on Civil Justice a September webinar for lawyers on leadership in multidistrict litigation, and a small convening in January of lawyers, judges and scholars on lawyer-client relationships in multidistrict litigation, and how to ensure that MDL clients are represented in a manner consistent with the rules of professional conduct.

Professor Ron Tyler of Stanford’s Criminal Defense Clinic moderates an October 26 discussion on “Indigent Defense During the Pandemic and Beyond” with Avis Buchanan, Director of the D.C. Public Defender Service, and Ricardo Garcia, Los Angeles County Chief Public Defender. This followed an October 15 panel with some of the leading “progressive prosecutors” in the country – District Attorneys Chesa Boudin of San Francisco, Eric Gonzalez of Brooklyn, and Marilyn Mosby of Baltimore. Both panels were co-sponsored by Stanford Law’s Center on the Legal Profession and Criminal Justice Center.

On February 2, the Center for the Legal Profession co-hosted an event (video here) with the Black Law Students Association, Women of Stanford Law, and the Stanford Center for Racial Justice that focused on how to address the scope of racial and gender inequality in the legal profession.

Moderator Joanna Grossman, a visiting professor at Stanford and professor at SMU Dedman School of Law, framed the discussion by noting that the lack of diversity and inclusion is evident in several different measures, but one of the most telling is the pyramid shape of advancement in the profession. For example, women have been 50% of law school graduates for about 20 years, but only 18% of equity partners in law firms. Lawyers of color are 22% of associates, but only 6% of equity partners. Women of color are the least represented, comprising slightly under 3% of equity partners. The lack of vertical equity is not the only way of measuring diversity or inclusion in the legal profession. Still, Grossman pointed out, it gives us a way of focusing on the persistent issue that reflects a much deeper set of problems: bias, structural inequities, complacency, power dynamics and resistance to change.

Panelists discussed the norm of lawyers being white and male, and how that affects the profession.  Shauna Johnson Clark, Norton Rose Fulbright’s global and U.S. chair, as well as its head of employment and labor in the U.S., mentioned that outside of large law firms and Fortune 500 legal departments, the profession is fairly diverse.  For Clark, one of the most important factors in diversifying large law firms is to create a firm culture environment that allows people to be “as close to their authentic selves as possible.”

Joseph West, a partner and Chief Diversity and Inclusion Officer at Duane Morris who previously served as the President of the Minority Corporate Counsel Association while in-house at Wal-Mart, emphasized the importance of implicit bias training.  Such bias comes into play at different “chokepoints,” he explained, including recruiting, compensation, mentoring, and who gets what work.  Clark, an African-American woman, mentioned that earlier in her career, when she was introduced to a new client, they would often say: “Where’s my lawyer?” She dubbed this phenomenon “sticker shock.”

Sandra Simkins. the Director and co-founder of the Children’s Justice Clinic at Rutgers Law School, argued that the norm of a female lawyer in many areas of public-interest law was itself a problem and comes with its own unique set of challenges. She pointed out that any profession that is primarily staffed with women becomes a “pink ghetto” (the subject of her recent article) with lower status and less compensation. In Simkins’ view, the gender stratification for women in public interest begins in law schools, as clinicians and legal writing professors (both primarily women), are at the lower end of the law school hierarchy.

The panelists discussed the opportunities associated with in-house counsel making diversity a priority in their hiring of outside counsel. “Client demands drive everything,” as West put it. And he said that GCs at a range of companies were starting to prioritize diversity and inclusion.  Doing this meaningfully, West pointed out, means making sure that the diverse partners who own the client relationship are getting the “origination credit” for firm compensation purposes.  Another approach – used by former GC Brad Smith at Microsoft – is incentivizing in-house counsel to reach diversity and inclusion metrics by tying a portion of their bonus to such goals. Clark noted that if we want to see real change, then corporate clients need to give diverse lawyers “at-bats” to run a deal or try a case. “Greatness — performing and delivering results – is the great equalizer. The problem is giving people an opportunity to be great,” she said.

The legal profession also needs to focus more on data and metrics, according to the panelists, in order to make real progress on diversity. Clark challenged law firms on this score: “In terms of making progress, if you are ashamed to even measure it, then that just speaks to the problem.”  But the data challenge is even worse outside the world of large law firms.  For years, the ABA has marked women’s progress in firms and other areas, Simkins pointed out, but there have been no reports or attempts to document women’s public interest careers. Grossman pointed to the continued importance of data collection from professional affinity groups like the ABA Commission on Women in the Profession and West’s former organization, the MCCA, which collaborated on the well-regarded “bias interrupters” study.

West noted greater attention in law schools to the issues around diversity and inclusion as well. Recently, there have been roundtable discussions hosted by the ABA Council on Legal Education about whether or not bias training should be mandatory in law school. “There is a greater understanding of the need for fluency around diversity and inclusion and equity, particularly as it relates to bias, and I don’t think that’s going to change,” he said.