Class Action

Mentoring young and prospective class-action litigators

By Peter Small, AdvocateDaily.com Contributor

Toronto class-action lawyer Margaret Waddell will help introduce law students and young lawyers to the complex and evolving area of litigation, which has been her focus for more than 20 years.

Waddell, partner with Waddell Phillips Professional Corporation, will take part in a March 21 panel discussion entitled Mentoring with Class Action Litigators, organized by the Ontario Bar Association Class Action Section.

“It's a great idea because plenty of students and young lawyers hear about class actions and they see the big sexy cases that are in newspapers, but they don't really know what they are, how they work, and what it means to actually practise in the area,” she tells AdvocateDaily.com.

Students will get the chance to ask class-action veterans about their work, and junior lawyers can learn how to gain experience and grow their practice, says Waddell.

The panel will focus on the less formal aspects of class-action law, such as practice management, and the skills needed to succeed, she says.

The topic headings are:

  • the paths to a class-action practice
  • the benefits of practising in this interesting area
  • the pressing issues facing class-actions counsel

There are two basic types of class-action lawyer, Waddell explains — those like herself who act for plaintiffs and those who act for defendants. The panel will have two lawyers from each side.

Lawyers for class-action defendants tend to be small-c conservatives who focus on showing that their clients acted appropriately and within the confines of the law, whereas those on the plaintiff side tend to be entrepreneurial, take greater risks, and are more willing to push the law forward, she says.

“The uniting factor is that these cases tend to be extraordinarily complex and deal with really challenging legal concepts,” Waddell says. “So it attracts people who have a more academic bent, whether on the plaintiff or defendant side, because we're dealing with such complex concepts and analyses of legal principles.”

Class-action lawyers need extraordinary organizational skills, she says. They work in teams to manage inquiries from class members, explaining difficult legal concepts in an understandable way.

They also need stamina because the cases are lengthy, complex and continuously evolving, Waddell says. “You have to recognize that you're going to be in the case for the long haul, and there isn’t going to be a quick-and-dirty settlement in the vast majority.”

For plaintiff lawyers, that means committing significant financial resources with no prospect of getting paid unless you settle, or are successful at trial, she says.

“There are periods of time — and some of them are quite lengthy — when we're not getting paid on cases, and then hopefully something will resolve and then you do,” she says.

When Waddell started practising class-action law, she wanted to work on social justice issues, but she also takes on commercial cases. “You need a mix because you're not going to win them all, and you need to hedge your bets,” she says.

Class-action cases have their own particular ethical issues, she says.

Plaintiff lawyers need to treat their representative client like they would any other client, “keeping them updated on the file, getting instructions from them, and not running the case as though they don't exist,” she says.

They also have a duty to do what’s in the best interest of the class as a whole, not just their representative client, Waddell says.

In addition, plaintiff litigators have an obligation to provide class members with comprehensive explanations for the reasons behind settlements, and fully explain their rights, she says, adding that negotiating skills are crucial.

"You need to articulate your legal and factual positions in a compelling way so that the other side understands where their risks lie," Waddell says. “It’s hugely important to be able to negotiate the best deal that you can because you're representing a whole bunch of people who aren't at the table."

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