Most lawyers are focused on winning in a court of law based on facts, evidence and solid arguments. However, Meetali Jain, of Tech Justice Law, also focuses on winning in the court of public opinion.
Her tool of choice is leveraging stories to create bad PR:
Jain often mentions the importance of storytelling.
“I think the experience we’ve seen is that the power of single stories and storytelling to bring companies to their knees and at least force them to reckon with actual concrete facts and concrete harms cannot be overstated.”
Creating the Perfect Storm
Jain’s collaborator in storytelling is The Human Line Project.
This shared emphasis on storytelling and PR provides a potential reason why she allows her plaintiff, Allan Brooks, to continually contradict himself in press interviews. His PR value is likely much higher than the value of his legal case.
The Stanford Strategy
In 2021, Stanford published “Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids.” Stanford is a partner of both Tech Justice Law Project and The Human Line Project and this document appears to be the playbook they are both operating from. It examines the question:
What is the role of tort litigation in protecting the public health? Addressing that question head on, Part IV amasses new support for what we dub a “catalyst” theory of litigation.
Drawing on both the tobacco and opioid episodes, we show that litigation can, at least some of the time: (1) draw attention to the problem’s existence; (2) unearth otherwise concealed information that clarifies the problem’s origin, scope, and character; and, in so doing, (3) affect public opinion in such a way as to spur private actors to address the problem and also make political action against a powerful industry more palatable.
Notice what this litigation doesn’t do? It doesn’t get any compensation for the original victims.
Original Victims Left Out
In both tobacco and opioid litigation, individual plaintiffs and class actions routinely failed. It wasn’t until state and local governments began suing “to recoup the social and financial impact of opioid addiction and dependence” that the tide turned.
Of course, when governments won their payouts, none of that money went to the original victims.
Viewed through a wide-angle lens, the shift has substantial consequences for the individual victims of substance abuse. Plainly, the most apparent consequence is that, once governmental entities take the reins, tort may continue to serve its deterrent function (though that depends, in some measure, on the structure of any eventual settlement). But tort law does not, and logically cannot, serve its compensatory function—and, as a procedural justice matter, surrogate actions leave direct victims on the outside looking in
Stories as Leverage
Jain said, “I just hope that we can leverage the stories and the storytelling ultimately for change.”
Why does Jain hope that she can leverage stories for change? Because the likelihood of individuals winning in court, even with a product liability angle, is a longshot.
In the tobacco litigation, no individual plaintiff scored a successful outcome through the first forty years of litigation...In a products liability arena where plaintiffs have notched so many high profile victories, what accounts for tobacco and opioid plaintiffs’ dismal individual showings? There are various culprits, but we see two as dominant: culture and cost. Cultural norms were the first obstacle that stymied both tobacco and opioid plaintiffs.
Second, when it comes to explaining defendants’ success, cost—and also lawyer capacity—are key. Even when one fast-forwards to the present day, costs continue to cast a significant shadow. Product liability suits alleging tobacco- or opioid-related injuries continue to be risky (for the reasons discussed above), time-consuming, vigorously contested, and highly dependent on extremely expensive expert testimony. Particularly in a world where the potential upside is limited (owing to some combination of noneconomic damage caps, due process restrictions on punitive damages, and contingency fee limits), the prospects of such individually initiated actions seem bleak.
Litigation as Cultural Catalyst
The Stanford paper credits litigation as a catalyst for the significant societal changes around opioid distribution and use (ie. new CDC guidance, prioritized enforcement by the DOJ, Medicare, FDA and DEA, as well as dozens of new state laws).
An open—and crucial—question is whether we’d be seeing this swell of activity in the absence of the current litigation. We believe that the answer is no. We believe that the above suggests that the opioid litigation has already succeeded in altering the behavior of certain institutional actors.
While mass tort litigation may be an effective strategy to achieve social change, if the people whose stories are leveraged only participate because they believe they will be personally compensated through their winning or settling their case, then they were not provided with true informed consent. Instead, they were used as pawns or puppets.
