Mastering Mass Torts

Kelly Anthony, Esq. | Deputy General Counsel
October 12, 2016


Prominent defective drug and device attorney talks about the skillset, fortitude and passion required for building a nationally respected mass tort practice.

After practicing law for over 20 years and having tried many civil jury trials, Glenn Phillips ventured into the world of mass torts with the Vioxx litigation in the mid-2000s. Since then, he has established himself and his law firms—Phillips Law Firm, PLLC and Sanders Phillips Grossman, LLC—as leaders in the industry. He has been appointed to numerous positions of leadership on plaintiffs’ steering committees, served on science and discovery committees and obtained settlements against drug and device manufacturers in excess of $300 million.

What motivated you to own a plaintiffs’ practice?

I started my career as a defense lawyer and worked my way up from defending individuals involved in auto crashes to handling significant injury cases, including wrongful death and product liability cases.

After a while, I tired of representing insurance companies and their insureds. So, in the early 90s I shut my defense firm down and started my foray into plaintiffs’ personal injury law. I wanted to help people that could not help themselves versus representing big, strong, powerful incorporations, pharmaceutical companies, product makers, insurance companies, and the like.

When did you start handling mass torts?

Right around 2005 or 2006 I began to get involved in mass torts with the Vioxx litigation. I understood product liability from my former life as a defense lawyer, but I really did not understand all the nuances of multidistrict litigation and consolidated actions in state courts. For instance, how rough and tumble pharmaceutical defense lawyers can be, how to cost effectively aggregate and manage a large portfolio of cases, and how to determine whether new matters are going to be actionable from a science and causation perspective. So, there were a lot of things I had to learn about in the early days.


How did you grow your mass tort practice?

Well first, I have a lot of experience in legal marketing because of what I had done in my local Seattle market. I tried to apply some of those local marketing principles to getting mass tort cases into the law firm and had some success, but it was not the same in the sense that marketing locally versus marketing nationally is a different animal. In actuality, to be forthright, it is a little bit easier advertising nationally then locally, as the competition is less on a national basis. 

It took me a year or two to get my feet on the ground and get the infrastructure built—to begin to get a group of cases within the firm and to commit work on those cases. Then, from there, I had to figure out whether I wanted to stay as a small mass tort firm and just process a handful of cases or whether I wanted to grow the business.

A couple of years into the process, I reached out to Counsel Financial to see if they would be interested in working with me to provide capital which I could use for the growth of a mass tort practice. Counsel Financial, after a period of due diligence, agreed to provide my law firm with a working line of capital, which in turn provided me with the necessary funds to acquire cases and process those cases on behalf of our clients. They provided my firm financing and off to the races we were.

Did you have financing prior to working with Counsel Financial?

No, I was self-financed and I do not believe I ever had a bank loan for my legal practice, or if did, it was a very small credit facility. My first venture into financing for my law firm was with Counsel Financial.

Why did you want capital?

Essentially, at the beginning, the capital raise-up was primarily for the use of acquiring mass tort cases through a whole array of marketing placements.

But then, as the business grew, some of the capital had to be used for the operational side. The cash flow had not caught up with the growth of the business, so there was a period of time where the raise-up was used for funding operations, which quite honestly, was disconcerting to me. I did not like to use expensive capital for operations, but at the same time, when I did the math on what I was aggregating and what it was costing me to process it, the availability of capital was very helpful to the law firm and most importantly very helpful to those clients who got the compensation they were entitled to.

What did you learn from your experience in the initial mass tort cases?

I learned that you have to be very careful. The first piece of it is you have to be careful in choosing how it is you that you are going to acquire cases, whether through referrals or direct advertising. It is very important that in a practice that is aggregate in nature, which means you are dealing with many cases, that you need to be careful that the cases that you are handling for the most part will be the type that ultimately are compensable.

The second part of the equation is that you have to make sure you have an infrastructure that is set up to handle the cases as they come through and to provide the clients the level of representation that they need. You just cannot run a large mass tort firm with a couple of staff and one or two lawyers. If you do not have many cases, then it puts you at a distinct disadvantage when it comes to applying for a leadership position in a given litigation. Being in leadership helps the clients ultimately, in that the law firm generally will be able to settle its group of cases earlier than others and in certain circumstances maybe even a higher settlement value.

Probably the third piece is to make sure you have adequate financing in place for the long haul. Mass tort resolutions over the years have begun to stretch themselves out. So, whereas it may have taken 12, 24 or 36 months in the earlier part of mass tort history to conclude a case, it now can take anywhere from 4 to 7 years, in which time, you need to have the financial ability to carry those cases and prosecute those actions effectively on behalf of your clients.

How did you get into leadership roles in mass tort litigations?

Primarily the leadership really comes from, at least what I think, a handful of different things: (1) being involved in the network of lawyers and law firms that traditionally have been in leadership roles; (2) having a fair amount of cases for a particular litigation, so you have skin in the game; (3) having the type of individuals at your firm, lawyers, who are competent to handle the work and who can do a lot of the work; and (4) the ability to provide capital in the leadership role to allow the litigation to get off of the ground and move forward.

Quite honestly, I am happy to see the court and judicial system begin to broaden out those that work in leadership. The courts seem to be aggressive about seeing more diversity from a gender standpoint and from an experience standpoint, and I think that is good, not only for those groups, but for the longevity of things, to make sure we have a continuation of good lawyers across the spectrum getting involved to carry the torch forward over the next several of years.

What is the single-biggest challenge you faced from when you started litigating mass torts until now?

That clients have to wait a long time to get their compensation. The pharmaceutical companies have done a really good job of slowing down litigation. When you finally, at some point, reach a resolution on a group of cases, then it just takes forever to get those cases processed, looked at by the defense, put on the grids, establish value, get releases in and out, make sure the medical records are exchanged and make sure the other side has whatever it is looking for. Then, cases may or may not have to go through an allocation process with a third party—all of which really lengthens the time from when someone took a particular drug or had an implant of a device and suffered some level of injury and actually receiving their compensation.

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From a business perspective, what do you think is the hardest about handling mass tort cases?

The hardest part for us is managing workflow. You have thousands of clients, thousands and thousands of clients that have particular needs, you have a lot of record acquisition that you need to do and some of these mass torts go back many, many years. And so, it is a work in progress to stay current on what the present-day laws are for privacy, HIPAA, whether it is a wet signature or an electronic, and those sorts of things, and keep your staff completely dialed-in to what they need to do to get records. Then, there are tasks like bookmarking the records, filing of complaints in various jurisdictions, dealing with multi forms of PFS’s [Plaintiff Fact Sheets], countless motions from the defense, bellwether trials, the list goes on and on. But, it is more of a training function—to keep everybody on task so they are meeting their goals, doing what they need to do, and to manage that piece of the business. It requires a lot of levels of supervision and management to keep that workflow going smoothly.

Do you have a background in business?

No, zero. Unfortunately, I probably made every mistake known to man throughout my career and so, I am definitely the poster child for learning on the job.

What do you believe is the biggest contributor to your firm’s success?

I think it is really perseverance. I do not use that term lightly. It is very difficult to build a big law firm that can fight on equal footing with a big pharmaceutical giant. And to me, it is the ability to withstand the assaults that come your way across the spectrum and to have the staying power to be able to stay in the fight. I think it requires someone with a tremendous amount of passion—the passion to take the fight to the other side and the perseverance to stay as long as you need to stay in order to get the client what they are entitled to.

What interests do you have outside of law?

I have many. Sometimes I wish I had more time to pursue them. I am outdoors oriented—being an avid skier, doing a lot of hiking and biking in the summer, and surfing when I get a chance. I am a veracious reader, fiction and nonfiction. I travel a tremendous amount. I did martial arts for almost 25 years. In the last couple of years I kind of slowed down though because the instructor, who was my neighbor, moved away, but I am hoping to get back into that in the future. I am excited about getting into some rock climbing. I am really more of an adrenaline guy, not a big golf and tennis person—I do not have the patience for that—I have to be in harm’s way.

What advice would you give to an attorney who wants to start litigating mass tort cases?

I think probably the first thing that I would tell them would be to make sure that your skill set is sharp before you step into that arena. I was blessed to have the opportunity to try a lot of different types of civil jury trials. So, I was lucky to come into mass torts already having developed a pretty good skill set that would allow me to be in a position to understand how litigation works, how to be proficient in litigation, and all that stuff that goes along with having tried jury trials.

The second piece is that you have to understand that handling mass torts is not only a legal process, but also involves tremendous business acumen. Knowing how you acquire cases, how you have raise-ups to pay for all the medical records and all the filing fees, how to pay other lawyers and staff to process the cases, being able to finance bellwether cases—there is just a tremendous amount of business that goes into mass torts because it is not turn and burn. Mass torts are a long haul business. The amount of money you spend from start to finish on these cases is staggering and if you do not have an understanding of terms like “return on investment” or “cost of capital” or the “hold period for a legal asset,” then you should. All of that is also independent from your primary duty, which is to make sure you ethically and passionately fight on behalf of your client, which you never want to lose sight of. But, in order to achieve your primary duty of representing your client, the secondary duty of running the business of a mass tort, in my opinion, is equally important. If you cannot do all the business pieces you are not going to be a position to fulfill your obligation to your client.

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