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Milberg Weiss, guardians of class action collegiality?



A defense attorney argues that the loss of Milberg Weiss has resulted in a loss of collegiality in litigation:

[T]he new lawyers are importing tactics from product liability cases, resulting in "an increasing inexorable tide of nastiness and incivility." In particular, he referred to tactics such as filing discovery sanction motions, noting that while good-intentioned people on the defense side are trying to find "millions of pieces of paper," they are being accused of "all sorts of high crimes and misdemeanors" by these younger attorneys who are "hijacking" the litigation process.

Alexandra Lahav is unimpressed:

Sometimes aggressive litigation is what addresses the merits, as compared with, say, just settling all cases in some smokey back room. I'm not saying that is what lawyers were doing before the entry of these over-caffeinated folks. But I'm also not against a cup or two if you're a bit slow in the morning. How do you determine the "merits" in the absence of litigation?

But aggressive litigation that concocts fictional discovery violations and sanctions is exactly the opposite of litigating on the merits. It's about trying to win a case on grounds other than the merits (see, for example, the Sunbeam case or John Edwards's infamous Valerie Lakey victory; see also March 2006 and October 2005) or to make life so miserable for opposing counsel that they have conscious or subconscious bias to settle a case that should be litigated.

There's also some false nostalgia going on if someone is claiming that Lerach et al. weren't engaged in nasty scorched-earth litigation themselves. Just ask Daniel Fischel.

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Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.