Big Law Class Action Litigation

Katya Valasek:

We're joined today by Samm Tillotson, a ninth-year associate and litigator at a huge law firm who spends a lot of her time doing class action defense. Let's start by talking about your practice at a high level because you don't do only class action work. Roughly speaking, how do you split your time?

Sammantha Tillotson:

I would say I spend about half my time in general commercial litigation, which can be anything from your typical breach of contract case, cases involving torts like negligence or fraud or products liability or construction disputes. The other half of my practice is very focused on insurance. I deal with bad faith claims brought against insurers directly.

I sometimes consult with respect to claims handling practices and specific high-dollar claims brought by insureds or against insureds. I also handle insurance class action defense. I would say that class action defense is probably about a quarter of my practice. The consulting in bad faith is about a quarter of my practice.

Katya Valasek:

At a firm like Baker Hostetler, you're billing out at a relatively large hourly rate. Does this rate have any impact on the types of cases you work on?

Sammantha Tillotson:

Yes, absolutely. In order to justify hiring a firm like mine, the amount in controversy just needs to generally be a little bit higher. Typically, my clients are in-house lawyers at larger corporations or at least mid-sized companies. It's pretty rare that I have individual clients or really small businesses as clients. With respect to what kind of cases, it is really just higher dollar, higher amount in controversy. If the case doesn't involve six figures in controversy, it might be something that doesn't make sense to retain my firm for, but I would say I'm typically someone you would hire when you're geared towards a trial.

In those types of cases, the budgets that we're putting together contemplate that we may have to go to trial because you don't always obtain a settlement. That can be expensive and it does lend itself towards us taking just higher amount in controversy cases.

Katya Valasek:

How many trials are you handling at any one time?

Sammantha Tillotson:

Again, a lot of my cases settle. I've only actually sat as first or second chair a handful of times in my career, but all of my cases are headed towards trial. The stats are something like 95% of cases in civil litigation settle. It's not uncommon for us to see cases that settle even at the courtroom steps. Everyone's about to go to trial and there's a settlement. It's not all that common that we actually end up at trial, but we take cases that are on that path.

Katya Valasek:

What is it about a case that makes it get that label of headed for trial?

Sammantha Tillotson:

Well, the cases that I take are typically cases that are going to be in state district court or in federal district court. In other practices, you might have agency proceedings or there are lawyers who spend all day trying to make deals between companies. In my practice, I'm dealing with, generally, lawsuits that are about to be or have actually been filed in state or federal district court. They are then immediately set on this path towards a civil trial, which is not the case in all practices.

Katya Valasek:

All right, I want to dig in now into the class action work that you do. And I want to start with some basic definitions that relate to a class action. What makes a class action lawsuit different than a typical lawsuit?

Sammantha Tillotson:

So a class action lawsuit contemplates that you have one or maybe a few individuals who are essentially representing a class of other people who are in their same circumstance. And the idea behind a class action is that it really doesn't make sense for any one person to pursue the litigation, right? For instance, you can imagine the circumstance where maybe there's some kind of fraud and the fraud is actually $5 on your account.

And that fraud happened to 2 million people, right? So the individual won't have any economic incentive to actually file a lawsuit because $5 just isn't enough to justify the cost of filing a suit. Class action provides this procedural mechanism where an individual can essentially demonstrate a certain factual scenario to the court and then proceed in a lawsuit on behalf of others that are in the same situation with the goal of potentially obtaining relief for the entire class.

So in the example I gave you, obtaining more than $5 for all 2 million people and then somehow distributing it to them and also paying attorneys for the work that they do to proceed in that class action. The way that it's different from a typical case is in your typical case, you have your plaintiff and your defendant.

And there are, of course, different iterations of that. You can have lots of plaintiffs, lots of defendants. You can have third-party defendants. But in a class action, you have just a small set of individuals or one individual representing many more people who are not active in the litigation.

So it really adds a lot of different layers to the way that the case proceeds. It becomes a lot more complicated and the strategy can be a little bit different because there's normal discovery. There's also class discovery now.

And from my perspective, I fight class certification, which is the court saying you meet all of the requirements for a class action in addition to fighting the merits of the lawsuit. And if you were on the other side, you would have to not only prove the merits of the lawsuit, but also that you are entitled to certification as a class action. So that's the main difference: it kind of proceeds on two different paths at the same time, both the normal path and the class action path.

Katya Valasek:

And you mentioned that class actions involve multiple individuals with the same harm. Are there any other requirements for a class action lawsuit?

Sammantha Tillotson:

Yeah, there's lots of requirements. One of them is numerosity. So there's no hard number in most jurisdictions for how many people need to be in the class. Generally, if you have like 10 people, you probably aren't going to meet the requirements for a class action. It's going to need to be more like 40, 100 at least in the class. And that requirement’s numerosity.

And then you have to show that there are common issues, which is what you were just talking about. But basically, you have to demonstrate to the court that everybody's factual scenario is more or less the same from a legal perspective. Otherwise, it doesn't make sense to proceed in a class action because you would essentially have to have like a bunch of mini trials to determine whether anybody was harmed.

So you have to show that there's this common harm and that that common harm predominates the class. And so there's this commonality and predominance requirement as well. And so those are the main requirements that you need to show in a class action.

And you also have to show that the damages can be ascertained. And that's the ascertainability requirement. And so going back to your question just a moment ago, you're not only, in my example, fight about the fraud -- did the fraud occur? -- you're also going to have to fight about did it occur to everybody in this class. Is everybody in the class similarly situated? Did they encounter the same facts in the same outcome? Are you able to parse what any one person's damages are with any type of reliability? And so all of those things are challenges that you face in a class action that you don't face in other lawsuits.

Katya Valasek:

So your class action work involves auto accidents. And it's interesting because when I think about car accidents, I immediately assume that every scenario would be different. So that commonality isn't obvious to me when I think about the area in which you practice. So what scenarios typically arise with class action lawsuits related to auto accidents?

Sammantha Tillotson:

So the class action work that I do is related to automobile coverage. And certainly a lot of the issues, they're triggered by underlying automobile accidents. But those underlying collisions are not going to be the basis for any of the class actions that I defend.

Instead, what would happen is, let's say that there's a large insurer and they included various disclosures to you when you bought a policy from them. The laws surrounding what disclosures an auto insurer is required or is not required to provide to someone, they vary across all of the states. And they contemplate that certain coverages need to be rejected at the time a policy is purchased, or else the insured might be entitled to that coverage if they didn't reject it.

So that's an example of how a class action might arise. So let's say that there's some ambiguity in the law and the insurers construe the ambiguity one way. They proceed in the manner that matches with how they construe the law. And they do or do not issue a disclosure to someone at the time they sell a policy. And then an issue percolates up to like a state Supreme Court and they say, “well, insurers, you actually did have to provide this disclosure and not doing so didn't comply with the law.“ In a lot of these circumstances, right, the interpretation of the law by the industry might differ from this Supreme Court.

And all of a sudden there are class actions filed where generally plaintiffs’ attorneys that do represent individuals in the underlying collision will bring suit in the class action space because they're the ones with a lot of the data to identify the folks who did or did not get the disclosures, right? They might file suit and say insurer A, B, C, and Z, they didn't provide the disclosure over the last five years. And that was in violation of the law.

And then what happens is we inevitably end up fighting, like, is the law retroactive? Does it apply in the past? Is it prospective? Does it only apply in the future? We have to work with our insurer clients to navigate the state of the law. Was the law clear prior to that decision? And we also need to help them navigate, does the class action have merit? Do they need to change policies? Do they need to issue disclosures in the future, right? Things like that. That would be an example of the types of class actions that I handle.

Katya Valasek:

So class actions have big stakes, especially when you start to get into outcomes that may involve treble damages. Do you have a lot of lawyers working on each of these cases?

Sammantha Tillotson:

So at our firm in Denver, we run cases very leanly and we might be somewhat unique in that, but we generally run cases with an associate and a partner, sometimes two associates and a partner. Obviously, if it is a very large case and it has extensive discovery, we'll bring in additional folks. But for the most part, our default is kind of running with very lean teams that might consist of maybe a mid-level associate, a senior associate, and a partner.

Katya Valasek:

How does this lean set up compare to the number of lawyers that the opposing counsel may have with them in any matter?

Sammantha Tillotson:

So it definitely will vary based on who our opposing counsel is, right? And in class action space, what you find is on the plaintiff's side, there's going to be a lot of lawyers because there's going to be various firms that represent all the people in the potential class. And it's not uncommon to have 10 firms who have filed lawsuits and then have all of those lawsuits get consolidated as a group insofar as there are negotiations or other things that need to happen in the case.

So in that case, realistically, we might be on the other side from 10 law firms and they kind of have to work amongst themselves to determine who is going to represent all of the, we call them putative, but the potential class members at say a mediation or in discovery. And so I would say we're typically outnumbered in the class action space, for sure. That said, there are plenty of cases where we have a solo practitioner as opposing counsel on the other side, or we're dealing with similar setups from other similarly sized law firms too.

Katya Valasek:

So you mentioned earlier that very few of your cases actually make it to trial. I want to spend some time digging into the kind of work that you do typically do on behalf of your clients. What are the things that keep you busy during the day?

Sammantha Tillotson:

So I am in court a lot, but just not at trial a lot. So hearings, everything from your typical kind of initiating the case hearing, which is usually a case management conference, to discovery hearings about discovery disputes, to appearing for summary judgment arguments and other dispositive motion arguments, to pre-trial appearances. So with respect to actual court appearances, those are the things that I would be doing. And then I just work the case. So I, in my practice, work the case from the beginning all the way through appeals fairly frequently.

So I will be drafting pleadings, which means the complaint, the answer. I will be determining whether or not to file early motions to dismiss and other similar motions, managing discovery, drafting discovery responses, negotiating discovery, taking depositions. What does managing discovery mean? So there are a lot of components to discovery. In my mind, there's a life cycle of a case, right? There's like the initial pleading phase where you're doing your answer after a complaint is filed. And then it almost immediately heads right into discovery.

There's different parts of discovery. So there's fact discovery and there's expert discovery. Those are the two main buckets of discovery. And of course, in a class action, you also have class discovery on top of those two. But your fact discovery is just what happened. And you're exchanging written questions, answering written questions with respect to what happened, who knows about it, and are there documents reflecting that? And then once you've collected that information, you head into depositions. And at depositions, you're taking all of that information you got in written discovery. You're questioning live witnesses about it, their memory, challenging contentions of the other side, gathering information for what will ultimately culminate in probably summary judgment where you ask the court to find in your favor on any particular fact or legal issue because the evidence in the case just doesn't lend itself to any other conclusion.

And then with respect to expert discovery, as fact discovery is proceeding, we routinely will engage experts. So if a case has to do with like we've retained human factors experts, which is an individual who would opine on decision making, basically human decision making and whether that human decision making contributed to a particular accident. We might hire an industry expert who can speak to whether or not our client met the industry standard of care in various industries. I routinely handle products liability cases. So an expert might offer an opinion about whether steps were taken by a manufacturer to provide a safe product to a consumer.

So expert discovery is also kind of going on in the background during discovery. And we routinely retain experts. And in that process, we'll do expert depositions. There's an exchange of expert reports. And yeah, I mean, those are the main components of discovery.

Katya Valasek:

So I know you're doing the right area of law because you lit up when you started talking about discovery. You have a small group working on any case. You said it's typically a partner, an associate, sometimes another associate.

Who does the work of finding these experts? Is that also part of your role as someone who's managing the case?

Sammantha Tillotson:

It is part of my role. I will say that many of our senior partners have just run into really great experts in the course of their career. And so my first stop is always to ask for recommendations for experts because generally I can get a great recommendation. It's unlikely that I'm just going to kind of cold call for an expert, but it has happened. But typically we just work our network within the firm. And then if we have to go outside the firm to our folks who serve as our local counsel or other attorneys we know in the area and ask for recommendations to find an expert that is in the field we need.

Katya Valasek:

I know in some areas of law, like divorce law, for example, there are sometimes some strategy that people take in conflicting out firms from their issue. Is there the same sort of issue with the experts you're using in your trials? Like is it possible that someone could be an expert that has worked for you in the past would not be able to assist you in a matter because of a conflict?

Sammantha Tillotson:

Sure, it's certainly possible. I would not say it's typical. Usually we are able to readily find experts. There are, I would say that there are experts that generally will be a plaintiff's experts and expert that will generally be a defense expert, but it's not necessarily true. And it depends on the subject matter. Some subject matters are just very niche and there might be very few experts. And it's absolutely happened where there's two experts in the area and one of them has been conflicted out already because of a prior case. But I don't see a lot of gamesmanship to intentionally conflict out experts. That's not something that I've encountered in my practice so far.

Katya Valasek:

So how long do the cases you work on typically take?

Sammantha Tillotson:

A long time. So I always tell the story that my boss, she started practicing and her very first case settled 15 years later, which is certainly not typical, but it can happen. I would say my typical case lasts one to three years in the trial court. And then if it gives rise to appellate issues and there's enough in controversy to make sense for an appeal, it routinely will last another two years in the court of appeals. So it's not uncommon for my cases to last three to five years.

Katya Valasek:

And how many cases do you have that you're managing at any one time?

Sammantha Tillotson:

Now I usually have somewhere around 25 or 26 matters. Not all of them will be in active litigation. Some of them will just be sitting, waiting for a ruling. We often see full court press and we get through discovery and we file motions and then we all sit and wait for six months to two years for rulings. And then only if and when we get those rulings do we actually get a trial date. And a lot of times once those rulings have come down, the issues are just more narrow. The court has ruled on some of the factual issues, the legal issues, and the parties might be much more likely to settle at that point.

Katya Valasek:

So how do you sort these cases for you so you know what needs attention and what doesn't? Do you put them in buckets? Are there separate corners of the room that you put them in? Is there color coding involved? How do you make sure that you're not forgetting about something that may need attention?

Sammantha Tillotson:

Lots of color coding and lots of help from the other folks on my team. So I work with an assistant. I have a paralegal. I have other lawyers on the case, obviously, but we all work together to track deadlines. We put in what we call dingers, but they pop up on your calendar and they're like, this is due in a week and you need to get it done. And we try to be very, very diligent about making sure that everything is calendared properly, that it has reminders an adequate amount of time in advance of the deadline so that you can get it done.

As a litigator, I am very deadline-focused. My professional life revolves around the deadlines in my cases. And I would say I come to work every day. I go through my case list. I color code. I am reorganizing the list and kind of shooting the alligators closest to the boat every single day. And there's always, too, there's things that you have to do and that have a deadline. There's things that you want to do to move forward with your kind of aggressive case strategy. And they might not have a hard deadline, but you want to get them done as soon as possible.

So you're always kind of juggling those things. For better or for worse, I think in litigation, the deadlines, they drive your life. And then sometimes they just disappear or you're not really sure which ones are actually going to come to fruition. I think that it's one of the more frustrating things as a litigator is that you don't have certainty and you never know when you might get hit with a motion from the other side that blows up your schedule and it just so happens to be Thanksgiving or whatever. And then sometimes you think that you're going to be slammed for weeks and weeks and then the case settles and all of a sudden your schedule clears up.

Katya Valasek:

How long did it take you to find confidence in living with that rhythm of looking for the alligators close to the boat, but then also being aware that some alligator might come flying out of the sky that you need to take care of as well?

Sammantha Tillotson:

A while. I think that just being an attorney in general is a hard job. Litigating is a very hard job. I think by the time I got to my fifth year, I felt like I really had my feet under me. At about 18 months, like this fog lifts and you're like, “oh, okay, I kind of understand what's happening.” And before that, you're basically just Googling words and trying to keep up and understand your cases. And then around three years, you become way more competent when it comes to case management, like overall strategy, understanding what's going to be coming next. And around five years, you're a very efficient case manager and you know what's already been done. You can see what is coming in the future and you become a lot more at ease with that rhythm. Now as a senior associate on the cusp of being up for either counsel or partner, I think that I'm now much more at ease than I used to be, but it is very stressful managing all of your case deadlines and especially just knowing that they can all kind of change at any minute.

Katya Valasek:

Not only are you a litigator, so that's complicated in and of itself, but the insurance industry is also extremely complicated. How long did it take you to get comfortable with the legal complexities of the insurance industry? Did that happen at the same time as you became comfortable with managing your caseload or did one have to fall into place before the other?

Sammantha Tillotson:

I think that in my mind, I see case management and sort of subject matter expertise as different. In my seventh year, I started being very comfortable with navigating the more complicated issues with respect to my more complicated cases. But that said, I work in the Complex Commercial Litigation Group is the title of it. And our group really does specialize in cases that have a lot of moving parts that are unique and where there's a lot in controversy. So I think that that learning curve might be a little steeper just in my group given the work than it could be in other areas where you get the subject matter expertise so much faster because you see the same sort of fact pattern over and over again. Whereas for me, I feel like we don't really get cases where we get the same question twice very often.

Katya Valasek:

Can you think of an example where early on you may have made a misstep and were given support that was helpful for you to learn from that experience rather than just beating yourself up over something that you did?

Sammantha Tillotson:

Yeah, I think when you first get into practice, it's really challenging. And I would say at my firm, it's very much a sort of trust-fall environment where you're demonstrating that you have skills and only then given full autonomy with respect to those skills. So there were a lot of times where there would be as a young attorney, me just not knowing something or knowing that I needed to look for something or making a mistake with respect to, let's say, a local rule of practice or any range of your typical errors and that being caught by somebody who was more senior than me.

And for them to come back to me, point that out and also coach me through that and then allow me to do the same thing the next time. And I remember as an entry-level attorney thinking that I was terrified to do the same task again, face that same challenge again and potentially mess it up again. And that was never something that kept the partners who were kind of my champions from giving me the same work and being like, “no, you can do this. Let's just navigate this together and we'll make sure that everything gets to be in compliance with all of the rules.”

Katya Valasek:

So another thing that you navigate as a litigation attorney is that work-life balance. How have you seen your hours evolve since you started nine years ago?

Sammantha Tillotson:

My hours started at 2250. Now I am at 80% time. And that came about because I am a mom. I have three small children. I have 2.5 year old twins and I have a 4.5 year old and they're all girls. I had them all while I was at the firm. I took maternity leave, came back. And this happened probably about a year ago, but I was like, this just, my life isn't making sense because I felt like I was working from like 5:30 in the morning until 8:30 at night, right? Just between taking care of everything and working.

And the firm has a pretty robust program that allows anyone, but in particular parents, to reduce hours. So I went down to 80%. I took a commiserate hit of pay, but it was the best thing for me. I think my life makes so much more sense at 80%. So I work 80% of my 1950 billable hour. I try to take every Friday off as much as possible.

I think as a litigator, it's harder to kind of be in and out. So I just try to just completely block a day of the week. It just makes more sense for me. The firm does give one-to-one pro bono at my firm. So all of the pro bono work that I do counts one-to-one for a billable hour as well. So that's nice.

Katya Valasek:

Fantastic. What kind of pro bono work do you do?

Sammantha Tillotson:

The biggest was a partnership with the ACLU and the Harvard Law Policy Institute, where we filed suit against the state of Colorado to seek that Colorado Medicaid give access to individuals with hepatitis C for these drugs that essentially reversed hepatitis C. They cured it. And the cure drugs were not being made available to those who were on Colorado Medicaid until they essentially demonstrated irreversible liver scarring. We brought suit against the state of Colorado, and ultimately there was a settlement and resolution and individuals in Colorado were given access to those drugs. And that case spanned a couple of years of my career. And then I've taken a few smaller cases here and there with individuals since then, but that's my bigger pro bono matter that I worked on.

Katya Valasek:

So based on Baker's particular partnership model, you mentioned that you are potentially up for partner next year. And before I ask you a question, I just want to give a little background context for our listeners. Big firms tend to go one of two ways with partnerships. In one case, some firms have multiple tiers of partners, equity and non-equity. An equity partner is a full partner contributing capital and sharing in profits. A non-equity partner is a salaried employee with less or no involvement in firm governance.

Baker goes the other way. There's only one partnership tier, which means there are no non-equity partners. But that being said, Baker kind of splits the difference here. Although there are only equity partners, the counsel title sits between associate and partner. Although there are exceptions, counsel at Baker generally means you're gearing up for partner, but not quite there yet. So for you, you're a ninth-year associate. It's a 10 year partnership track. What kind of conversations are you having right now about partnership?

Sammantha Tillotson:

They haven't happened yet, but I think in the coming months, I'll start checking in with my managing partner. You kind of evaluate what your stats are, meaning dollars in the door, what your billable hours are going to be. There is a three-year runway is what we call it.

So a three year look back. For me, one of those years was a year that I had twins. So it wasn't a high billing year for me. And the firm certainly does give credit for maternity leave and tries to make everything kind of apples to apples. But that's part of my runway. Those are the things that I'll be talking about with my managing partner. What do the stats look like? Does it make sense to be counsel or to be going partner? There's a lot of different conversations that happen too about the need.

I know that it kind of is group dependent too for advancement. So for me, I haven't been through it. It's a little bit of a black box still, but I plan to be having a lot of those conversations with my management, my mentors, and champions over the next couple of months.

Katya Valasek:

So one of the things you said that they will look at is dollars in the door or book of business. How do you develop a book of business when the clients you're working with are such big dollar clients?

Sammantha Tillotson:

It can be challenging. And what I've seen is that once you establish these longstanding relationships with clients, when you're working on their cases as an associate, as counsel, as partner, then they start calling you for other matters. So I think a lot of our business is just that kind of sticky factor. Clients thinking of Baker & Hostetler as being really great representation and then reaching out again and again for other matters or recommending us to others. And to me, it seems like the best pathway to building a book of business from my perspective has always been just being a really great attorney for our existing clients and then building business through our existing work.