A class action is a special kind of lawsuit, which is brought when a large number of plaintiffs have the same cause of action against the same defendant, for example an insurance company or an industry such as asbestos or tobacco. The plaintiffs are all suing for the same thing, but they may live anywhere in the country, and it obviously wouldn’t work for all of them to sue individually. For one thing, there would be no end to the litigation. It would take forever to dispose of all the claims. For another, there might be inconsistent judgments in different courts, some for the plaintiffs, some for the defendant, which would give rise to huge legal headaches and trigger a fresh round of litigation. To avoid all this, the cases are consolidated in one particular court, which means that the plaintiffs sue as a group, and negotiate and settle as a group.
Sensible as this is, it does pose some problems. The plaintiffs must appoint a lead plaintiff to pursue the litigation on behalf of everyone. Whoever sues first is in pole position to become lead plaintiff, but it doesn’t always work out that way. The attorneys representing the lead plaintiff are going to be the ones making most of the money, because they are doing most of the work and taking most of the financial risks, so there can be some competition for the position. If the lead plaintiff’s attorney is someone like me, or a small firm, they may actually welcome a bigger firm with more people and resources riding to the rescue, and they may have no problem giving up the lead and slip-streaming behind a firm that can match the defendant for muscle power. But not everyone feels that way, and there can be some ugly battles between law firms trying to take over the lead position, battles the court may have to resolve. And while that goes on, the defendant can sit back happily and watch while resources are squandered on in-fighting instead of pursuing the case. And even after that, the legacy of bad blood between the law firms may hamper efforts to negotiate and settle the case; and if the case goes to trial, there may be some big egos arguing about who should be lead trial counsel.
To my amazement, I find myself playing through these scenarios in my head and getting territorial about a case I haven’t even accepted, imagining arguments to persuade the judge that I should continue as lead counsel and march the members of the van Eyck class on to a famous victory. The only realistic part of my fantasy is that Sam and I would be the first to sue. Not much doubt about that.
Getting the case up and running would be simple enough, and, for me, would be like having home field advantage. For cases like this, contractual claims against the federal government, you sue in the United States Claims Court, a court in Washington DC established by Congress specifically to deal with such disputes. I am very familiar with litigation in the Claims Court. I’ve had a good number of cases there on behalf of plaintiffs, and I have a good professional relationship with the judges. There isn’t as much competition for that kind of work as there might be.
You would be amazed – or perhaps you wouldn’t – at the number of law firms in and around DC that are squeamish about suing the federal government. So many of them either are, or would love to be connected politically, and are desperate to attract work from the movers and shakers in the capital. They think that if they get caught playing for the away team, it may hurt their prospects of greater intimacy with Washington’s political élite somewhere down the road. I don’t give a rat’s ass about any of that. I have no interest in the political élite, and I have no problem with screwing money out of the federal government in a good cause. It doesn’t bother me even one bit. I like the Claims Court. You can only sue in the Claims Court if your claim is for more than $10,000. That’s one problem we won’t have. So why not?
Arlene was about to tell me why not. We were sitting side by side at my conference table, and I had just outlined for her the case Sam had brought to us, and she was not looking too impressed.
‘Lord have mercy, hun,’ she began. ‘Now, I know that you have been through some tough times. Believe me I do know that, and I understand that, hun. I surely do. But… have y’all lost y’all’s ever-lovin’ mind?’
Odd as it may sound, this was not said at all unkindly.
‘I haven’t said I want to take the case,’ I pointed out.
‘I mean, have you thought this through at all? I mean, do you see an army of secretaries and paralegals anywhere in this office? ’Cause I sure don’t. It’s you and me, darlin’. That’s it. And do you know how much money it would take to get this show on the road? Do you see a spare million or two in y’all’s bank accounts? ’Cause I sure don’t.’
‘I haven’t said –’
‘Sorry, hun, but this dog won’t hunt.’
I took a deep breath.
‘I haven’t said I want to take the case.’
‘You haven’t said you don’t want to.’
‘I haven’t talked to Sam since she left the paperwork with me. I asked her to call me today.’
She nodded. ‘Well, all right then. But may I take it that when she calls, you will refer her on to someone else?’
‘Like who?’ I asked.
It was something I had been asking myself ever since I had bought myself the time to think it over. I couldn’t just throw her out on the street without making some effort to make sure that she ended up with a lawyer who would do justice to her case. Well, in theory I could, but in my own mind I was well past that point with Sam now. Whether or not I had any strict professional duty, I had taken on the burden of making sure she was OK. That didn’t mean I had to take the case myself, but it did mean that I had to find the right lawyer or firm for her.
With most cases that came into the office, that wouldn’t have been a problem. I had a network of lawyers I could refer cases to, and accept cases from, when needed. But with this case, none of the names I was coming up with seemed right. Even Don Quixote and Associates would think twice about this one. This wasn’t just tilting at windmills; it was tilting at a whole wind farm – a class action-size wind farm. You could spend a lot of money on this case, and the chances of ever making a single cent would still be in the range of negligible to zero. Even if Jacob had been provided with loan certificates, even if those certificates still existed – and those were huge ifs – you would have to find them. Without them, you would have no chance at all. But where would you even start looking? I felt pretty sure that any law firm big enough to handle this case would laugh in my face for even suggesting it. Actually, I wouldn’t mind that. I just didn’t want them laughing in Sam’s face.
Alternatively, I could, I suppose, just tell her that the whole idea of suing the government for whatever happened the best part of 250 years ago was crazy, and that she needed to forget about it and get on with her life doing Arthur Miller and Tennessee Williams. But I knew I wasn’t going to do that, and I knew that she wouldn’t take my advice even if I did.
‘Well, hun, that’s a good question,’ Arlene was saying. ‘I sure can’t think of anyone we know who would touch it. And that, right there, is why y’all shouldn’t touch this with a nine-foot pole. It’d be like taking a lame mule to the rodeo and calling it a quarter-horse. Now, you may get to the rodeo, but you ain’t about to rope yourself a calf.’
I called Sam and told her I needed another day to look at the papers, and asked her to come to the office the following afternoon.