We understand why lawyers sometimes exasperate the MDL Panel. When plaintiffs’ counsel are advocating that cases be centralized before Judge A, counsel may suggest that Judge B has an unfair defense orientation. Defense counsel then argue the reverse: the cases should in fact be centralized before the wise and sagacious Judge B, because it is Judge A who is unfair — in favor of plaintiffs. The Panel throws its hands in the air, declares a pox on everyone, and announces that, because of the acrimony among counsel and protestations that judges are biased, the Panel is shipping the cases to a neutral, third judge, not proposed by counsel for any party. This reasoning appears repeatedly in the Panel’s decisions; for an example in a published decision, see In re Silicone Gel Breast Implants Prods. Liab. Litig., 793 F. Supp. 1098 (JPML 1992).
Sounds sensible, right?
The last thing — the last thing — the MDL Panel should do is to validate counsel’s attacks on the judiciary. But that’s just what this reasoning does. If, as defense counsel, I like Judge B, but, if I can’t have him, would happily settle for any random federal judge over Judge A, what does the Breast Implants decision instruct? I should argue that Judge B is great and Judge A is corrupt. That way, there’s a chance that I get Judge B. But, if I don’t, there’s a chance that the Panel will throw its hands in the air, declare a pox on everyone, and centralize the cases before neutral Judge C, a random judge picked from thin air. I don’t mind that result; it’s better than Judge A. The Panel’s precedents thus actually instruct me — and, depending on the meaning of the words “zealous advocacy,” may require me — to badmouth federal judge A before the Panel, in the hope that the Panel will ship all the cases to Mars — a random forum, but at least not Judge A.
Most lawyers don’t want to badmouth federal judges in public. Most suspect that the MDL Panel doesn’t want to hear lawyers badmouth federal judges. But Breast Implants says that counsel can profit by trashing federal judges before the Panel. If counsel can create sufficient acrimony, the Panel may ship the cases to a neutral forum. Counsel can use Breast Implants to pursue a “Mars strategy” — if we don’t get our preferred Judge B, we’ll settle for Mars.
We’ve attended hearings during which MDL Panel members have complained: “Why do the lawyers appearing before us always always attack the judges? Judges are generally fair; we don’t want to hear all of this badmouthing of the judiciary.”
Why do we attack the judges? Because your precedent says that we should (or must), that’s why. Breast Implants creates the Mars strategy, and counsel implement that strategy by badmouthing the judges.
What should the Panel do? Eliminate the Mars strategy; de-legitimize badmouthing judges before the Panel. The Panel should expressly reject the reasoning of the Breast Implant line of cases that says that, where counsel violently criticize the competing transferee judges, the cases will be sent to a neutral third judge.
What rule should replace the current Breast Implants doctrine? That’s a tougher choice. We were about to type that the rule should be: “If counsel badmouths a judge, then, as punishment, the Panel will centralize the cases before the criticized judge.” But that rule wouldn’t work either. Counsel might then violently criticize the judge that counsel actually prefers, hoping the Panel will inflict on him the new rule of “punishment.”
So the solution must be simply to de-legitimize badmouthing the judges. Accusing potential transferee judges of bias should be put off limits. The Panel should eliminate its rule of transferring cases to neutral fora where there’s acrimony among counsel and should simply instruct counsel that the Panel disfavors the argument that judges are biased.
That would be a relief to us all. Counsel would be delighted to be relieved of the option (or, possibly, duty) of publicly accusing federal judges of bias, and the Panel would be relieved of the burden of routinely hearing charges that federal judges are unfair. That’s a small change in the legal environment that would make the world more comfortable for all of us.