Private Lawyers, Public Lawsuits: Plaintiffs' Attorneys in Municipal Gun Litigation
Howard M. Erichson
Fordham University School of Law
SUING THE GUN INDUSTRY: A BATTLE AT THE CROSSROADS OF GUN CONTROL AND MASS TORTS, T. Lytton, ed., University of Michigan Press, 2005
This chapter of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (T. Lytton, ed., U. Michigan Press 2005) examines the activists, politicians, and trial lawyers on the plaintiffs' side in the municipal gun suits, and how their converging and diverging interests drove the litigation. Like the state tobacco litigation, the gun litigation involved public entities that turned to mass tort plaintiffs' lawyers to supply the experience and resources to pursue difficult and expensive litigation. And like tobacco, it involved mass tort lawyers who, frustrated in their attempts to use class actions, turned to government lawsuits as an alternative means to aggregate claims. But the gun litigation presented a unique set of alliances and rifts, in which gun control advocates disagreed among themselves concerning trial strategy, mayors with different political ambitions pursued different litigation paths, and private lawyers found themselves embraced by some municipal plaintiffs and eschewed by others.
In New Orleans, for example, a coalition of mass tort plaintiffs' lawyers, rebounding from disappointment in the tobacco litigation, saw their interests converge with a gun-control mayor at a moment of political opportunity, and with a public interest advocacy group whose constituency shared an interest in pursuing the product defect strategy favored by the mass tort lawyers. In Chicago, by contrast, government lawyers brought a law enforcement mentality to the litigation and pursued a public nuisance theory, using government resources and pro bono counsel rather than private contingent fee lawyers. Among activists and law enforcers, despite sharing a common agenda on gun control, important differences emerged on how to approach the litigation, depending on whether they saw the core problem as inner city violence or accidental shootings and unauthorized users.
The story of private plaintiffs' lawyers in the public gun litigation suggests several themes concerning public policy mass torts: the convergence of activists, politicians, and trial lawyers, and the different mindsets they bring to litigation; the use of public entity lawsuits as an aggregation mechanism by mass tort lawyers; and the entrepreneurial mindset of mass tort lawyers. Closer examination of the gun litigation, however, reveals the difficulty applying generalizations across a spectrum of mass torts. Public policy mass torts bring together three major categories of players on the plaintiffs' side, but in the gun litigation, the noteworthy fault lines appeared within these groups as often as they appeared between them. The split between politicians at the city and state level, and the split between public nuisance advocates and product liability lawyers, proved as significant as the more obvious differences between activists, politicians, and trial lawyers.
Keywords: gun litigation, mass tort, plaintiffs' lawyers
JEL Classification: K13, K40, K41Accepted Paper Series
Date posted: September 14, 2004
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