Individuals within the aggregate : relationships, representation, and fees

by Judith Resnik, Dennis Curtis, Deborah R. Hensler

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Over the past decade, 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 represents all 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, who perform tasks in addition to those done by a court-appointed plaintiffs' steering committee. The 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.

Originally published in: New York University Law Review, v. 71, nos. 1-2, April-May 1996, pp. 296-401.

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