Alison Frankel on 37 Years of Legal Journalism

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Welcome to Raising the Bar with RebuttalPR, the podcast where we elevate the stories of the plaintiff's bar and dive into the key trends shaping the civil justice system today. I'm your host, Ray DeLorenzi, and in each episode, we'll bring you insightful interviews with leading attorneys, expert perspectives on current legal events, and in-depth discussions on the issues that matter most. Now, let's jump in.

I always was so happy when I would get a pitch from somebody who said, this is a story for you. We're coming to you because we know you're going to understand why this is important, or you're going to understand the maneuvering that's happening here and why it impacts how this case is going to proceed.

Ray: Hey, everyone, welcome to the new episode of Raising the Bar with RebuttalPR. I'm Ray DeLorenzi. We are joined today by Alison Frankel, the longtime Reuters legal columnist. She wrote a practically daily litigation column for Reuters since 2011. And just last month, wrote her last column, capping off a 37-year career in legal journalism. Alison, thank you so much for taking the time to join us today.

Alison: Thank you for having me.

Ray: So, I guess, let's get to the question most people are probably thinking, which is why now? What brings an end to your time at Reuters? For those who listen to this podcast, in my world it's a must-see column. What brought you to this moment? And what's next?

Alison: What brought me to the moment is that it's really hard to write a daily column that is insightful and newsworthy and fair. And I was just worn down. And I have a one-year-old grandson and want to spend more time with him. And, honestly, I just thought, I'm pretty old. I've been doing this pretty long. I should really turn the stage over to people who might have different and more interesting perspectives.

Ray: So that was starting at the end, but now I want to take us back all the way to the beginning. If you can bring us back 30 years ago. How did you get, and you worked for ALM, or American Lawyer Media, at the time. What got you into journalism and, in particular, legal journalism in the first place?

Alison: I was a journalist from high school. What got me into it? Who can remember? Honestly, it's been so long. I joined The American Lawyer, I think I've said this a number of times, I joined The American Lawyer because the editor at the time, Steve Brill, was considered a journalism genius. And I thought I would go to ALM, learn some magazine reporting and writing skills, and then leave. But I just found that I loved the subject matter.

And in particular, I loved writing about mass torts. One of my first big stories was about the silicone breast implant litigation. It seems so quaint now to remember, but there was a huge debate over should this be an MDL? Should every plaintiff proceed individually? It was all the issues that, almost 40 years later, we're still talking about. And I just thought the whole idea that if you're one of thousands of people allegedly harmed by some particular product or some particular incident, the rules for your litigation would be completely different than if you slipped and fell outside of a Walmart. It still kind of confounds me. But yeah, that's one of the themes that has run through my whole decades-long career.

Ray: So you did this for more than three decades. What kept you interested and passionate to continue focusing on the legal and litigation world?

Alison: So it was sort of both socially important and intellectually interesting. And I also loved the personalities. I got to know plaintiffs' lawyers. In a way, I don't know if anyone could replicate this, because I got to know a lot of really important plaintiffs' lawyers at the dawn of the mass torts era, really. I mean, I came in, asbestos was already obviously well underway, but it was pretty wide open, other than that. And so a lot of the folks I knew who were sort of then young plaintiffs' lawyers went on to have amazing careers.

And so part of what was fun was tracking people like Joe Rice as he went from being Ron Motley's kind of numbers guy to being a huge force in and of himself. And that's really one of the big reasons. And the issues just could not be more important. How do we bring recovery to thousands or hundreds of thousands of people who've been harmed while maintaining the fairness, the due process, fairness for defendants? Nothing could be more interesting than that.

Ray: I want to dive deeper into the legal reporting world. But before going into that, there's obviously a lot of macro discussion about the media and journalism industries and significant changes that are occurring, from layoffs to acquisitions, and you have billionaires entering the space. How did you feel that it impacted journalism, if at all, in your day-to-day? And how would it change how you approach stories, and particularly in such a specialized area that you focused on?

Alison: I've been so lucky as a journalist, I have to say. I was a magazine journalist for the American Lawyer when people would literally wait for the American Lawyer to arrive in the mail. And then the magazine itself would change hands 10 times within law firms. And then I kind of transitioned to daily journalism while I was still at ALM, and digital journalism while I was still at ALM. But at ALM we were always a little insulated from changes in the profession, in journalism at large, because we wrote for a specialized audience. And it was still, thank God, an audience that wanted to read words and appreciated the words that we were slaving to bring them.

And at Reuters, I feel like I was equally lucky. We had support at Reuters from Westlaw, which used our stories on their own platform. So again, we were always treated as something a little different from the main newsroom. And thankfully, readers appreciated what we were bringing them. And so no one ever, really, in the whole course of my career, no one ever said, you can't write that, you have to write this. I've just always had tremendous freedom.

Ray: So I want to pull back the curtain a bit, and maybe get into how some of the sausage gets made. I assume you get flooded with story ideas on a daily or weekly basis, whether it's PR flaks like me or lawyers that you know. What was the incoming like for you? I don't know if you can put a number on it, but how many ideas would be on your desk on any given day or week that you would sort through and need to figure out, what am I going to cover today?

Alison: So, fewer good ideas than you would think. I would routinely get 100 emails a day, and 98 of them were not worth more than a second glance. It's harder than you think to find, or maybe it's just me, but it's harder than you think to find stories that were really in my particular lane, which is something that a lot of people will be interested in, but isn't off the news, because Reuters has news reporters who were covering actual daily events. But isn't so niche that nobody but the three lawyers on a plaintiff steering committee and the defense liaison committee care about it. So it was kind of a balancing act. And honestly, it's one of the reasons I stepped away, because it was pretty stressful finding a good story every day.

Ray: So let's say out of those hundred, what percentage would come from the plaintiff side versus the defense side versus, let's say, maybe a third bucket of people who are, maybe just lawyers who stumbled upon something, and they're like, oh, maybe Alison's interested in this?

Alison: Yeah, probably 70% from firms, 25% from plaintiffs' lawyers or PR folks for plaintiffs' firms, who have gotten a lot better at this, incidentally. And maybe 5% from random people saying, I read this and I thought it was interesting, or I filed this brief and you might be interested. Still dominated by defense firm marketing, I would say.

Ray: So we'll keep working with that hundred denominator. 98 are junk. You've got two, or let's say you had five. What would you look for to say, that's the one? What are the elements?

Alison: Yeah. So for me, I sort of talked about this a minute ago. For me, I wanted this to be something that the whole world wasn't also writing, that wasn't better suited for a news story from Reuters. So if somebody just says, we've filed this lawsuit, you may be interested in the complaint. I would look for a legal issue or a sort of inside baseball question. I love nothing more than MDL steering committee selection fights. But the truth is, you don't get a lot of pitches saying, oh, we're in the middle of a fight over who should be the head of this MDL. So to some extent, that was research that I would do on my own, tracking dockets and looking at filings, looking at what the MDL committee is up to, that kind of thing.

But yeah, that was it. And I always was so happy when I would get a pitch from somebody who said, this is a story for you. We're coming to you because we know you're going to understand why this is important, or you're going to understand the maneuvering that's happening here and why it impacts how this case is going to proceed. When people made pitches like that, I was like, yes. Thank you. You understand.

Ray: So, okay, you decide on what you're going to write for that column. Who is your audience? Who are you writing for? Are you thinking, because I guess there are lay people who can access this, there's sort of a metered paywall. But who are you really writing for?

Alison: My stories were outside the paywall. Always outside the paywall.

Ray: Okay. So were you writing for them? Were you writing for other lawyers? Who did you view as your audience? And would it depend on the story? How do you think about that?

Alison: Yeah, that was a constant source of tension. Reuters has millions of readers. And for the most part, I wasn't writing for them. I always think of myself as writing for lawyers, or readers who are sophisticated enough to appreciate legal issues. And there are a lot of business people out there who follow legal developments really carefully and with a very sophisticated eye.

And frankly, I would be surprised when I would hear from plaintiffs, and pretty gratified, honestly. When I wrote a story, for instance, about the judge in the 3M earplug case basically shutting down all litigation funding, I heard from a lot of plaintiffs who were pretty upset, frankly. And many of them, to my sort of surprise and delight, were like, thank you, you really explained something in a clear way that we couldn't find explained anywhere else, and that was kind of nice. But honestly, that was sort of like the cherry on top, because both Reuters and Westlaw appreciated that I was providing a product that was pretty unique, and lawyers appreciated it.

Ray: Before strictly focusing on the plaintiff side, I had done some defense work. And I don't know if you ever sort of heard this, and I think it's common anywhere. Defense lawyers would be like, oh, Alison Frankel, she favors the plaintiff's side. And then there'd be some plaintiff's lawyer who would be like, oh, Alison Frankel favors the defense bar. And I always viewed your reporting as, you favor the controversial and interesting. So I was curious what feedback you got over the years from both sides of the V, and what that was like.

Alison: Yeah. So I'm sort of happy to hear that you would hear from both sides that they thought I favored the other side. I really tried to be balanced in everything. There are issues, the concept of justice for people who've been harmed, yeah, I believe in that. The concept of treating defendants fairly in the process, I believe in that too. So if you have a problem with either of those concepts, you're going to have a problem with me. But mostly, I looked for good stories.

And I have to say, I have been desperately wrong. As someone reminded me when I retired, one of my last stories at ALM was a story about how there would never be another mass tort on the scale of the tobacco litigation because of all of these sorts of structures that defendants had managed to kind of build in with tort reform and PR success. And boy, I could not have been more wrong about that. And I do remember one plaintiff's firm was really furious about that story. And I was like, hey, listen, prove me wrong, and I'll come and write about that too. So I hope I have since. I don't think I ever said, hey, by the way, I was really wrong about this, but I've since covered subsequent mass torts, kind of implicitly acknowledging that.

I really can't think of a story where people said you were biased in how you covered this. People might say, I disagree with your conclusion, or I don't like the story you told. But I really can't think of a story, I'm really racking my brain here, I can't think of a story where someone came and said you didn't report this fairly.

Ray: So is there a story that comes to mind that struck a chord with your readers in a way you just were not anticipating? Because, again, some of your stuff would get into the weeds a bit, depending on what the issue was. But was there one that you raised, and it just set folks off in a way, not saying that it was wrong, but just on a specific topic?

Alison: I'll give you two examples. One, separate from my daily column, I did a project in 2015 about the pelvic mesh litigation. And my reporting partner and I found out about this very disturbing, it was disturbing to me, very disturbing system where plaintiff's lawyers would encourage clients to have mesh removal surgery using private funding instead of using their own existing health care insurance. And the plaintiffs would then end up with big medical liens that would then have to be paid before they were able to recover from their settlements. And we were surprised at how controversial that story was with mesh plaintiffs. Some people were very angry that we were questioning it, and I'm not even talking about the attorneys involved or the funders involved. I'm talking about the plaintiffs themselves. And some were very angry and upset that we had called into question this private funding, because they said this is the only way for a lot of us to have been able to proceed with this surgery that we thought was really so important to our well-being. So that was a surprise.

And then, in a kind of related way, I covered a study by Beth Burch from the University of Georgia, really a first-of-its-kind study on plaintiffs' perception of the MDL process. And there were some issues with the data, because it was sort of a self-selected base of survey respondents. And I covered her study, just wrote about her study. And then I was at a conference soon thereafter where the study was quite harshly criticized by a judge. And I was really surprised, and defense firms criticized it as well. And I was really surprised that there wasn't, and frankly plaintiffs' firms also, because one of the things that Beth uncovered was that people did not feel like they were getting enough communication from their attorneys. And I was really surprised that lawyers in the system, and even a judge in the system, were not interested in more feedback from the people who are in the system. That the instantaneous response was defensiveness. And that was a little troubling. And it wasn't my story so much that was being called into question, but as someone who had covered the study and covered it as a welcome development, I was surprised by the response.

Ray: So, speaking of judges, it doesn't surprise me that you would have plaintiffs or defense counsel sending you notes, commenting on your coverage. A little more surprising, but I think in a good way, that individual plaintiffs would. Did you ever hear from judges? And I'm not asking you to name names, but would they ever give you, whether it was about a case they were overseeing, or maybe a tip on something to look at more closely?

Alison: Once in a blue moon, I would get a tip from a judge who would just, the particular judge that I'm thinking of would just send rulings that might have otherwise kind of flown under the radar, just with a thought you might be interested in this. And yeah, over the years, I would hear occasionally from judges, really not a lot. But when you would meet judges at conferences, or on the occasions when I would have to call a judge's chambers for comment, it was always so gratifying to hear, like, oh, Alison Frankel, yeah, I know your stories.

One judge, this was probably the highlight of my career, I swear, a judge who I really admired on the Ninth Circuit, I met at a conference. And he just started asking me, and he's like, I read your stories, and I had previously mentioned that I'm not an attorney. And he was like, I don't know how you can write these stories without being a lawyer. It was so nice. And I was just like, oh my God. Called my husband right away.

Ray: I gotta ask. So this judge sends one of their opinions and says, hey, check this out. Was it like, they thought it was eloquently written, or did it—

Alison: In the particular instance I'm thinking of, there were two decisions on an issue that we had been covering. And these decisions sort of shed more light on this ongoing issue and were smaller cases. The judge thought we might pick up that, oh, here's another example of XYZ.

Ray: So as you mentioned up top, mass tort litigation has been a huge theme and subject of yours. How has, I mean, I think you can go all day talking about how the landscape has evolved over the last, not even the last 30 years, you could talk about the last 10. But how had your reporting evolved on the subject, in line with the changes that have occurred in that world?

Alison: So one thing I learned in the mesh project was that there is so much happening underneath the surface of mass litigation that I didn't know very much about at all. I knew there was such a thing as litigation funding and really had been reporting on litigation funding for a long time, since probably like 2010. So I knew there was litigation funding. Obviously, I knew there was such a thing as lead generation. But what I did not understand until that project was how big an industry lead generation had become, how much litigation funding was involved in the industry.

And I have to say, what you see, and what I spend most of my time reporting on, those issues have really not changed a whole lot. How do you pick plaintiffs' lawyers to run the case? How do you vet plaintiffs, should you vet plaintiffs, how do you vet plaintiffs, and there's definitely been evolution on that side of things. And it's been public, we see that in dockets. But I think the biggest change in my mind in mass tort litigation, what you really don't see from dockets, is how lawyers find plaintiffs.

And then there are all kinds of ancillary considerations. How do we vet medical records? What kind of interest do plaintiffs' lawyers have in companies that are vetting medical records? What kind of interest do litigation funders have in companies that are vetting medical records? There's a million issues, and frankly, I didn't get to delve into all of them with the depth that they deserve and demand. And as a daily columnist, I think it's fantastic that people who were injured now have a better chance than ever of finding out that they have a cause of action. That's great. But I do think there are a lot of questions about how we find those plaintiffs, how those plaintiffs' cases are handled, what is a fair level of communication between lawyers and clients? Should cases be transferred to co-counsel? A lot of questions.

Ray: When you look back at your journalism career, if you had to pick one story that stands out to you as the one you want to be known for, that just stands out to you personally, I know it's like picking your favorite child, but if you had to pick one, what's that story?

Alison: I really can't. I'm sorry to botch this, but I don't even remember stories anymore. My editor calculated that I had written something like 10 million words for Reuters. It's very hard. And there's such a difference. I was a magazine journalist for 20 years. The stories you write as a magazine journalist are things you work on for months and then get edited five different times and fact-checked, with fancy photos. It's a totally different beast from a daily column. So I really can't answer it. I just can't.

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Ray: All right, so let's move outside of legal journalism for a second. Because I've been in the legal world, not as long as you have, but since '08. So I read you at ALM and then when you went to Reuters, but I only learned just in preparing for our discussion, you wrote a book about, is it a $20 coin?

Alison: A $20 coin.

Ray: And how did you get into it? How did that happen? It just seems so far afield, but now it's on my reading list. I just needed to ask about this.

Alison: Yeah. I was not a coin person, just putting that way out front. I saw, of all things, an advertisement in the New York Times for an auction of this 1933 $20 gold coin that had been pulled from circulation along with all gold coins in the 1930s when FDR came in and took us off the gold standard. It had actually been pulled from circulation, but sort of secret. The auction description kind of said, after years of legal wrangling, this historic coin is coming up for auction. And I was like, wow, years of legal wrangling. That's my entree. I just thought the story was so wacky.

So, like that day, the ad ran on a Sunday. The next day, I came to the office and I found out who the lawyer representing this British coin dealer who had obtained the coin was. And it was Barry Burke at Kramer Levin, who has gone on to great fame as the impeachment committee's counsel and counsel for countless famous white-collar defendants. He's a fantastic lawyer. And he's like, oh my God, this case, come on in, let's talk about it. And I went in, and it was a legal story. And the auction was happening, like, the next day or the day after. It's a long time ago, so I can't remember all the details, but I went to the auction and I was just captivated.

And I wrote a story for the American Lawyer, the whole time thinking, I've got to write a book about this. It's just the craziest thing. It's the craziest story. And yeah, it was so much fun. It's like a real-life thriller. It really is. It involves Secret Service agents from the 1930s and King Farouk and a sting operation in Texas in the early 2000s. You can't even make it up. You look at the book jacket, and it's just, what? So it was a ton of fun.

Ray: So I know you're handing over the reins to Jenna Greene, and I'm not asking you to offer any advice, but if you were to look in your crystal ball over the next, let's say, 10 years, what do you think are going to be the major trends or themes in mass torts? Where do you see the world going?

Alison: I mean, I think it's continuing the same. But what do I know? I'm just a reporter. But I do think the same, and I should go back and say, one of the things I said in my farewell column was that when I started at Reuters, we were fighting over how MDL judges should pick leaders and allocate common benefit fees, and we're still fighting about that. So I do think that as MDLs become even more commonplace, there will be more institutionalization of some of the innovations we've seen. Like, how do you kind of keep a warehouse of cases and do some level of vetting? I think those questions are going to continue to percolate, and judges are going to learn from successes other judges have had.

I think it's going to be interesting to see how vetting of science experts continues to impact MDLs. We've really seen defendants attack those experts in increasingly aggressive ways. I worry a lot about this bankruptcy option that seems to have been temporarily stalled, but we'll see how that plays out. I think it's of concern that mass tort defendants talk about or consider filing for bankruptcy to take these cases out of the traditional court system. I think those under-the-radar things I mentioned are going to continue to percolate, and the impact of litigation funding, as litigation funding grows as an industry, its impact on mass torts, I think, is going to be a story that continues to be really important to follow.

Yeah, I don't foresee some grand realignment. And the one time I predicted some grand realignment, I was completely wrong. So you're not going to catch me on that again, Ray.

Ray: You know, just to end this, I want to quote the last line from your last column, which said, I hope I've helped you know more, which I think is what any journalist should strive for. But I know for myself, and I suspect for many of the lawyers listening to this, you certainly have. So thank you again. We're going to miss your writing, but wish you a wonderful retirement, and thank you for joining us today. Really appreciate it.

Alison: Thank you so much. I really appreciate it.

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