Money for Justice: Plaintiffs’ Lawyers and Social Justice Tort Litigation

Abstract

Tort lawsuits brought in response to social injustice occasionally generate incentives for entrepreneurial plaintiffs’ lawyers to get involved in the litigation. What ethical responsibilities do such lawyers navigate in this space? And to what extent are they interested in, and well-positioned to produce, social change? The Article addresses these questions using a previously uncharted case study on civil actions for damages filed by Palestinians against the Israeli government. Through fifty-five in-depth, semi-structured interviews with the various types of lawyers involved in the litigation, alongside quantitative analysis of an original data set of 300 judicial opinions, the Article reveals how fee-for-service plaintiffs’ lawyers stepped into a void left by human rights organizations — well-versed in impact litigation, but less so in tort lawsuits. While these plaintiffs’ lawyers notched achievements on the individual client level, their involvement shaped the litigation as a stream of particularized claims rather than a systematic struggle to alter the status quo. It also inadvertently — and ironically — supported lawmakers’ initiatives to discourage anti-government tort litigation. Through this case study, the Article allows us to rethink the cause lawyering framework—defined as the set of practices engaged in by lawyers to mobilize the law to promote or resist social change — and its role in conceptualizing where social change comes from. Questioning conventional scholarly focus on lawyers’ motivations, the Article shows that plaintiffs’ lawyers’ practices — such as using confidential settlements and the contingent fee structure — are just as important as motivations in determining their function as agents of change. It also argues that personal injury lawyers should not generally be considered “cause lawyers,” given their practice’s limited capacity to challenge the status quo. Yet, in the current political climate, when civil society organizations are under constant attack and social justice is an ever-waning resource, plaintiffs’ lawyers and traditional cause lawyers should join hands to mobilize civil society and leverage tort litigation to effect change.

Keywords: cause lawyering, tort law, plaintiffs' lawyers, social change, civil litigation