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Zealous representation: a (wordy) response to Evan Schaeffer

Evan Schaeffer has criticized the tone of a post I wrote this weekend, and deserves a response. But I need to preface it with a true story about the litigation decisions an attorney faces.

Background: The Federal Rules of Civil Procedure present a low hurdle for filing a complaint: one need merely file a "short and plain statement of the claim." Such a low bar presents problems, because, combined with the lack of a "loser-pays" rule and expansive and expensive discovery procedures, it means that a defendant can get out of a meritless lawsuit cheaply in only when a defendant can show a lack of a factual dispute.

A client of mine had been sued by a competitor for alleged antitrust violations. The suit was wacky enough that I would've covered it on Overlawyered, had it not been a case I was directly working on. To call my client a monopolist would have required a gerrymandered definition of a "market" that noone familiar with the industry would think make economic sense. As a matter of public policy, it was a wasteful suit that had no business being brought, and any amount spent litigating it would have been a social loss; it was, simply put, a lottery litigation hoping that a judge and a jury would make enough mistakes that the plaintiffs could collect tens of millions in alleged damages, or, perhaps more likely, hoping to extract a nuisance settlement that compensated the plaintiffs' attorneys to the tune of hundreds or thousands of dollars an hour to save the defendant the cost in time and money of producing every single e-mail and spreadsheet it had ever created about the economics of widget production and sales.

These costs are not negligible. A defendant must have its employees drop what they're doing and retrieve the paper and electronic documents. Staffers must copy documents to paper or to an electronic image; perform filing tasks; "code" database entry to keep the haystack searchable so an attorney can quickly find the damaging admission in the Blackberry message the CFO sent the night of February 17. The documents can't just be dumped wholesale; attorneys must review them to ensure that nothing is being produced to the other side that shouldn't be produced (such as attorney-client communications—or embarrassing personal e-mails of a top executive to his mistress). The defense attorneys must also think about the documents in terms of what needles lie in the haystack that will be taken out of context to be used by the plaintiffs in the deposition of the defendant's employees in the hope of obtaining other answers that can be taken out of context in front of a jury. Someone can correct me if I'm off here, but I'd hazard a guess that the total out-of-pocket costs to the defendant work out to be a dollar or so for every page generated via e-mail or otherwise, not including the cost of lost employee productivity. That joke you e-mailed to everyone in the department? Fifty bucks if your company gets sued over something your department deals with, whether or not the attorneys take the time to weed it out. It may seem overkill to have highly trained individuals with at least nineteen years of education screening your e-mail jokes, but make a mistake in withholding documents, and it can cost your employer a billion dollars. (One advantage of Harriet Miers: she would be the only Justice on the Supreme Court who has actually experienced the insanity of a modern-day document production first-hand.)

So the case had the potential to be an expensive annoyance to my client. But, under Fed. R. Civ. Proc. 8, the complaint was a short and plain statement of a claim seeking relief: it alleged that there was federal jurisdiction, and that my client monopolized the widget market, causing damage. That a tiny bit of scrutiny would show that it made no economic sense was irrelevant: a Platonic judge applying the law in a vacuum precisely and neutrally would find that it met the low bar for a complaint, and would permit the case to proceed.

But the Federal Rule isn't completely in a vacuum. There were a number of appellate decisions out there holding that an antitrust complaint failed to state a claim because the plaintiff hadn't provided a detailed economic definition of a market in their complaint. This was precedent that we could use in a motion to dismiss.

Now, as a matter of theory, these decisions are completely wrong. Rule 8 doesn't require that a plaintiff provide a detailed economic definition; Rule 9 tallies an exclusive list of what a plaintiff must plead with particularity, and a detailed economic definition of an antitrust market isn't in that list. Moreover, a plaintiff could protest that it wasn't possible to provide a detailed economic definition of an antitrust market (which could be used against it later in the case) without performing discovery on the defendant. The decisions may well be good legislative public policy—they were acting to throw out weak complaints that didn't have a reasonable chance of success—but they were judicial activism, judges acting outside of their role in the judicial system to substitute their judgment for what is wise for that of the binding rules.

But that was spilt milk; the decisions had been made, some before I was an attorney, and they were precedent that supported my client's case. My client could save millions of dollars by having a motion to dismiss granted. An attorney is supposed to zealously represent his or her client, and I thus had an ethical obligation to ask the court to apply these precedents—even though I was effectively asking the court to repeat and compound the mistake that some earlier courts had made. But if we hadn't presented the option of a motion to dismiss to the client, our client would have had a legitimate grievance against us.

There were multiple layers here:
1) What is good public policy?
2) What is the "correct" judicial decision, given the law and the facts? (I usually answered this question by asking myself: "How would Judge Easterbrook decide this case?" Note that, contrary to the apparent opinion of many Senate Judiciary Committee members, principled adjudication means that Answer # 2 may not correspond to Answer # 1.)
3) What is good for my client, given my ethical obligation to represent it zealously?

Do I use precedent that flunks one of the first two questions? And what do I accomplish if I insist on fighting with one hand behind my back by refusing to use such precedent when I can be confident my opponent will have no such compunction? How do I sleep at night? (Answer: I actually slept pretty well, because, so long as my answer to the third question was consistent with the answer to at least one of the first two, I could rationalize my litigation choice. And I was fortunate in my career that the vast majority of my clients didn't require me to make arguments that flunked both of the first two questions.)

Such questions are why several commentators (correctly) stated that one couldn't draw conclusions about judicial philosophy or predictions about votes from the briefs that John Roberts wrote on behalf of his clients—and such questions and the conflicts they present do much to explain why the public has a low opinion of legal practice.

And now we come to Evan Schaeffer. I wrote a post entitled "Forum-shopping and Vioxx litigation" that commented on the tactics of a Vioxx suit that had been filed in St. Clair County. The issue interested me by itself, and would've provoked a post; I ran across the fact that one of the plaintiffs' attorneys happened to be a prominent blogger when reading the article more closely, and mentioned it as an aside. (Evan criticizes the Madison County Record as "amateurish", but the article in question simply reports the fact that the suit was filed, the parties to the suit, and the attorneys who filed the case, without issuing any opinion on the merits. It's curious that Evan would view the mere repetition of these publicly-available facts as the first part of a "one-two punch," but I'll leave others to speculate on what motivated that characterization.)

This has offended Evan, who apparently believes that I am challenging his ethics, provoking one of his anonymous commenters to call me "repulsive." Evan correctly notes that he is acting in a way that is "permitted under the rules."

Some judges certainly permit a plaintiff forum-shopping a case unrelated to a venue to bring a suit in St. Clair County; some judges certainly permit plaintiffs to sue pharmacies for filling a prescription; some judges certainly permit ten unrelated plaintiffs to participate in a single suit; many federal courts remand a case where a plaintiff misjoins a same-state defendant he has no intention of bringing to trial so long as the minimal standards of Rule 8 are met. I don't think these are good things: for example, when ten unrelated plaintiffs are in the same trial, the effect is to muddy the individualized issues of causation to the detriment of the defendants' right to a fair trial. (And, yes, I have the same problem when the government brings omnibus cases against dozens of criminal defendants.) Still, a plaintiffs' attorney who believes that it will benefit her client to legitimately convince a judge to take these steps has an ethical obligation to give the client an opportunity to agree to pursue such an option. But therein lies the problem: what Evan is doing is permitted by the rules (or, at least, by some judges' interpretation of the rules). As Michael Kinsley likes to say, the scandal isn't what's done illegally, it's what's done legally. The rules need to be changed to prevent the problems I described in my original post.

So let me be clear: There are certainly far too many corrupt plaintiffs' attorneys out there who will act beyond what zealous representation requires to falsify evidence or misrepresent precedent, but I don't have any reason to believe that Evan Schaeffer is one of them, or that he's violated any ethical rules. I don't believe that what Evan is doing is socially beneficial, but the post wasn't aimed at him. Even if I were to somehow use the power of the blog to shame him into leaving the profession to spend his time writing novels and traveling, if the rules aren't changed, some other attorney will just go and do the same thing under the same principle of zealous representation. Which is another argument for changing the rules: they currently encourage far too many bright and well-intentioned people to zealously represent their clients in ways that hurt society as a whole.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.