Plaintiff lawyers read this blog, which we like. Criticism occasionally comes our way because the blogposts – horrors! – harbor a particular point of view. And that point of view occasionally gets recharacterized as bias or an admission against our clients. Such recharacterizations are invariably nonsensical. So far, they have never obtained even a foothold with courts.
A couple of times we’ve been criticized for repeating someone else’s point of view. For example, we’ve quoted the American Tort Reform Association (ATRA) designation of certain jurisdictions as legal “Hellholes.” What is an ATRA Hellhole? In general, the reference is to court systems in which corporate defendants have a tough time getting a fair shake, either as a result of one-sided procedures, or mis- (or non-) application of legal principles, or a local habit of letting juries run away toward massive damages and far from reason or proportionality. For more specifics, see the ATRA list, which lays out detailed reasons why certain jurisdictions are inordinately hostile to our clients. You might say that the ATRA Hellhole list is nothing but bellyaching by fat cats. But you’d be wrong.
Law firms that defend big corporations and charge high rates are seldom modest. They regard themselves as being good at what they do. They might even regard themselves as elite. Here’s the best test of whether that is true: do clients trust you with high-stakes, difficult cases in difficult jurisdictions? In other words, if you are a defense hack of more than middling competence, you probably spend lots of time in ATRA Hellhole jurisdictions. The first rule is do not complain about it. As Hyman Roth said in Godfather 2, this is the business we have chosen. The second rule is resist despair and fight the good fight.
We recently had the experience of sojourning in two ATRA designated judicial Hellholes for two different clients in two different mass torts. The two experiences were very different, though each was illuminating. We offer an account as a sort of worm’s view supplement to ATRA’s description. To our mind, ATRA gets it right. But knowing something and experiencing something are not the same. Here is what it feels like to labor in a judicial Hellhole.
The first adventure took place not just in a particular jurisdiction, but in a particular docket within that jurisdiction. ATRA warns that the judge who oversees that docket has been brutal to corporate defendants. The pretrial rulings hardly ever favor the defense, the conduct of trial is, er, challenging for the party seated further from the jury, and after the jury returns the inevitable plaintiff verdict, the judge is more likely to issue an additur than a JNOV. We had read this depressing account before we headed into the courtroom for a full day of pretrial festivities.
We were spectators as much as participants, because we were not representing the lead defendant. Another (very fine) set of lawyers was charged with that responsibility. They took the lead on most of the motions and argued them exceedingly well. Didn’t matter. The judge did not even attempt to hide full-blown contempt for the defense positions. There was a visible, emotional aspect to the judge’s adverse rulings. The judge seemed angry that the defense had the temerity to try to defend itself. But when the plaintiff lawyers argued, the judge’s features softened. There were nods of appreciation, and occasional suggestions for other points that might support the plaintiff’s position. We couldn’t help but recall the old Rumpole of the Bailey stories by John Mortimer (who was himself a barrister in London courts). Dear old Rumpole at one point politely inquired of a judge whether they might be more comfortable climbing down from the bench and assuming a seat at opposing counsel’s table.
The judge drastically curtailed the scope of defense expert witness opinions. It seemed that these rulings were animated not so much by the rules of evidence as by the simple fact that the judge disagreed with the defense experts. The judge also excluded most theories of alternative causation. There were several moments when it looked as if the judge would issue a directed verdict in favor of the plaintiff. Why even go through a show trial?
We had heard that this judge sometimes told defendants in open court that they were in for a rough time, so maybe they should seriously consider settlement. Mind you, these suggestions of reeling in ambitions and settling for a nonoptimal amount were never directed to plaintiffs. Anyway, we did not get to hear that speech from the judge. But we did get the message. After seeing, hearing, and feeling the reasons for ATRA’s entirely correct designation, we got out. Did the judge’s in terrorem approach work? Yes. Do we hate that? Yes.
As Lenin wrote, What is to be Done? We noticed that most of the arguments by the plaintiff were presented by local counsel, who had clerked for the judge. That was a smart move. The judge seemed to hang on every word of the ex-clerk plaintiff lawyer. The lead defense counsel also employed a local counsel who was a former clerk for the judge. The judge said some nice things about that ex-clerk, and there were probably some benefits for the defendant. But the judge’s palpable dislike for the defendant prevailed over whatever residual fondness the judge had for the defense-side clerk.
Our advice? Stay away. Get out of cases early, do as little business in the jurisdiction as possible, and drive 500 miles out of the way if need be to avoid being anywhere near the place. If anything, the ATRA Hellhole designation understates how one-sided the court system (at least the one specific docket) is in this otherwise charming place.
The second adventure was different. We were well aware that the court system had a reputation for being allergic to summary judgment, for never-ever limiting plaintiff expert testimony (it is a non-Daubert jurisdiction), and for blessing eye-wateringly high jury verdicts. Moreover, there was some case law in the jurisdiction that seemed to smile upon an extension of liability to defendants that were pretty remote from the plaintiffs. There was plenty of case law from other jurisdictions blasting such an extension of liability, but we had been warned that the judges here were completely uninterested in what other jurisdictions had to say. Though we were in a big, cosmopolitan city, the judges were hopelessly provincial.
But the judge presiding over our summary judgment motion was not closed-minded or hostile. We got a fair hearing. Guided by the local lawyers’ advice to focus only on local precedents, we assembled a summary judgment argument that the fundamental principles of tort law in this jurisdiction were at odds with the plaintiffs’ effort to sue everyone in sight. We thought we were merely making a decent record for appeal from what we were sure would be a denial of our motion. Not so. The judge took a short break, then returned with a well reasoned analysis of the relevant tort law, and then tossed the case out completely.
Two ATRA Hellholes, two different outcomes. The ATRA descriptions were largely accurate. In the first case, being forwarned was not quite the same as being forearmed. If you are in front of a judge who is hellbent on clobbering you and/or your client, there is not much you can do. (You might think about assembling a strong record for appeal, but, for various reasons, the judge in the first jurisdiction does not get reversed.) By contrast, the other place, even with some unfriendly cases and procedures and customs, still allowed one to act like a lawyer, and not just play the part of a lamb led to the slaughter. The advice in the second jurisdiction not to waste time on extra-jurisdictional case law was useful.
No one has written about Hell so well as Milton. He wrote that “The mind is its own place, and in itself/Can make a Heaven of Hell, and Hell of Heaven.” Life is more about how we react to things than the quality of the things themselves. Through thoughtfulness and will, we can “make a Heaven of Hell.”
Well, except maybe for that one jurisdiction ….