Legal jargon – for most of us, it’s like wading into a lake without seeing the drop-off five feet ahead and feeling the floor fall out from under you as you scramble to keep your head above water. But with the media attention on proceedings against Takata industries and Honda, AndroGel, GM, Bayer and Johnson & Johnson, “legalese” is becoming more and more ingrained in everyday conversations. Further, bellwether cases have taken on a special light under media coverage. No doubt you heard about the $417 million talc verdict against Johnson & Johnson linking the company’s talcum powder and ovarian cancer, and that the company is again under fire with the third Xarelto lawsuit beginning next month.
It’s easy to see why these trials have captured our attention. What we’ve come to think of as trusted, homegrown, family-oriented brands now stand accused of putting people in serious, sometimes deadly danger. To help make following these landmark cases a bit easier, here is a “plain English” explanation the bellwether case process, and its associated terminology.
History of the “Bellwether”
The origin of the term “bellwether” dates back to the 13th century when farmers needed a way to keep their sheep together, and be able to find them and be able to find them should they get lost. They would do this by finding the “wether,” a castrated male sheep, whom the flock was in the habit of following. Then, they’d literally tie a bell around the sheep’s neck, thus creating a bellwether.
As you might imagine, by the 15th century, the word was repurposed as an insult, referring to a man who only a sheep would follow. Finally, bellwether made its way into the legal system. In modern usage, a bellwether is an event indicative of future trends. Therefore, a bellwether trial (or trials, as the case usually is) serves as a reference point for a wider range of claims by setting a precedent. The term was officially added to the American legal lexicon in 1972 by the US Supreme Court.
Mass Tort and Multi-District Litigation
Again, looking at mass tort litigation, the term becomes easier to understand when you break it down by word. Tort litigation refers to any civil case (tort simply meaning “civil wrong”), jargon that lay people would shy away from if they didn’t know better. However, “mass” is a word we’re all familiar with. If I tell you something is “massive,” you’ll immediately know that I mean it is large, enormous, huge, etc. Think of mass tort litigation the same way: it refers to civil action lawsuits involving numerous plaintiffs.
Multi-District Litigation (MDL) is exactly what you think it is: Legal cases from multiple districts that are consolidated to one venue. MDLs are chosen by the MDL Panel, comprised of 7 judges from different circuit courts, or courts that operate over several different jurisdictions, like state courts or any federal court of appeals. The Panel can choose to establish an MDL when it sees a plethora of similar cases across districts. The MDL temporarily relocates these cases to a “transferee” court for pretrial proceedings: All the proceedings that come before a trial, like “motions” by either side for dismissal or evidence, or settlements.
The Bellwether Process
Now, once an MDL is established, the judge and attorneys are responsible for choosing the bellwether cases. The number of cases that qualify for bellwether trials is not stipulated. Rather, the goal is to provide a sample of cases representative of the whole. Historically, there were early attempts to “bind” bellwether cases to external cases so that the verdict on a bellwether case would directly determine external case verdicts. However, modern MDLs are non-binding, so while they set precedent, they are not directly tied to the trial proceedings of all related cases.
The judge in charge of the MDL has a few options for selecting the cases best suited to bellwether status. Best practices agree that involving the attorneys on either side of the courtroom helps produce better results. The idea is that these attorneys have the biggest stake in the outcome, so they will do everything in their power to have their cases well-represented. Often, the process begins by categorizing the whole universe of similar cases (think of the thousands of talcum powder lawsuits) and breaking them down into categories that address common issues and legal questions.
After the categories are established, the attorneys and the judge work together to create a pool of representative cases. They seek to find the cases in each category that cover a range of issues. Opponents to the process worry that attorneys will only push for cases that are strongly in their favor. However, an alternating choice system similar to jury selection can be used to mitigate these concerns.
Finally, when the cases have been chosen, a formal “transfer order” is sent out, and the cases are temporarily brought to the MDL venue. At this venue, all the pretrial proceedings take place. Then, the cases are taken back to their original districts for the actual trial. As some cases will be dismissed or settled before trial (a process, which can be used by either side to sway the outcome in their favor), they will be replaced by cases in a prepared backlog.
Additional Benefits to Bellwether Trials
In addition to setting the trend for future proceedings, bellwether cases have one other huge benefit: They let the lawyers practice. Through bellwether proceedings, legal teams are able to develop and examine their use of evidence, questioning techniques, and arguments. For external cases, this helps the law firms create a set of standards, often in the form of a “trial package,” which can also be used by local counselors in their own proceedings.
Staying Afloat with Legal Jargon
If you find yourself in a courtroom, in a lawyer’s office, or perhaps even surfing the web to see if you have a case, you’re likely to come up against more “legalese.” Instead of being intimidated, arm yourself with knowledge. The Internet puts answers at your fingertips, so do some research on any term or process you don’t know. If you are discussing an issue with a lawyer, instead of asking them to “speak English,” ask them to explain the legal meaning behind their words– that way you can better understand what they’ll be saying in front of a judge. If you are in proceedings and find yourself failing to tread water, take advantage of recesses to get caught up with your legal counsel. Don’t be scared of drowning; learn to swim with the sharks.