We’ve said before that plaintiff lawyers do a better job of putting together bench-bar conferences than the defense side does. It mirrors to a certain extent what goes on in the courtroom. The plaintiff side is better at showmanship. It is not just us saying that. Last week, we were at a bench-bar conference focused on Multidistrict Litigations (MDLs), and a state court judge told us the same thing. He had more fun at the plaintiff-run conferences. That judge was just one of many important judges (from state courts, including the Texas Business Court, as well as federal district and circuit courts) who came together to discuss the latest doings in MDLs, which have become the 64,000 pound gorilla of the American civil docket. Also in attendance were luminaries of the plaintiff bar, the usual suspects among defense hackery, and, increasingly important, tech vendors (more about artificial intelligence (AI) in a bit) and a banker (more about third party litigation funding (TPLF) in a bit.
The Chatham House Rule (note the singular – most people refer to the Chatham House Rules, but that plurality is a mistake) applied to the conference, which means that statements should not be attributed to any specific parties or affiliations. Therefore, anything we say about the conference will be like a plaintiff’s ultra-processed food complaint: broad, vague, and occasionally incoherent.
We were on a panel moderated by an esteemed law professor. Also on the panel was a federal judge who had terrified us in a particular case. A long, long time ago, that judge had been a student of the professor’s, and it was interesting, surprising, and even a bit touching to see how the judge deferred to the professor. The panel was subjected to the Socratic method. We look forward to frequent anxiety dreams over the next couple of months. The main issue at hand was TPLF. There are draft bills in Congress on that topic, and there is a federal judiciary committee looking into it. As a card-carrying defense hack, it is obligatory for us to favor disclosure of TPLF, and a new Fed. R. Civ. P. modelled on Rule 26(a)(1)(A)(iv) — which mandates disclosure of a defendant’s insurance coverage — would suit us right down to the ground. The plaintiff lawyers were equally predictable in their opposition to such disclosure. Their argument was that such information is not relevant, it implicates work product concerns, and, anyway, there is no empirical evidence that such disclosure is needed. We waggled a finger at the professor. Unlike law school, where we were happy as a clam to, well, clam-up, we decided it was our duty to point out that absence of empirical evidence might be a function of absence of transparency. Moreover, some TPLF agreements have surfaced that, while cleverly disclaiming general control by the funder over the litigation, then go on to assert such control by dictating choice of lawyers, approval of settlements, and even client appearances. Some funding agreements require payments to the funders that include monetization of equitable relief. How does that work? As for more empirical evidence, what about Elizabeth Burch’s book, The Pain Brokers, which documents a sleazy scheme that involved vaginal mesh litigation funding, unnecessary surgeries at inflated prices, and plaintiffs who emerged from the TPLF maw with scars and dissatisfaction?
At that point, a plaintiff lawyer who had worked on the vaginal mesh litigation expressed indignation that anyone would challenge the bona fides of that MDL. The illusion of harmony was dispelled for a moment. Not all was peaceable in the bench-bar kingdom. Should we respond? Galileo said “and yet it moves,” referring to the earth, after being criticized (an overly gentle way of putting it – Galileo was shown the implements of torture) for his heliocentric theory of the solar system. The scam afoot in The Pain Brokers might have been an aberration, but it happened. Sorry to veer from kumbaya. Go ahead, plaintiff bar, and defend the undefendable. And yet it reeks.
Maybe we should have reverted to law school form and just said “Pass.”
To be sure, we do not believe that the unhappy plaintiff lawyer or his firm had anything to do with anything inappropriate in the mesh litigation. But there are bad actors out there, and one reason that rules are necessary is to address the mischief wrought by such bad actors. That being said, the bad actors are not usually the folks who show up at bench-bar conferences. What puzzles us is why a good plaintiff lawyer would feel the need to protect the bottom-feeders. We do not mean to be unfair. There were several instances during the conference when plaintiff lawyers spoke in favor of early vetting of MDL cases. The good lawyers vet their own cases and make an effort at separating the wheat from the chaff before filing. We know who those lawyers are, and their inventories command much more respect from our clients. Those lawyers actually embrace new Fed. R. Civ. P. 16.1, which lays out early vetting opportunities in MDLs. Rule 16.1 implements, at least in a hortatory tone, procedures that many MDL courts have improvised and deployed over recent years to, for example, require early showings of usage and injury. We heard from one judge who implemented state-of-the-art procedures to encourage early vetting. This was a judge who had learned from a prior MDL how messy things could get. It made us think of Irving Kristol’s quip that a neoconservative was “a liberal who had been mugged by reality.”
We heard from judges who were or had been on the Joint Panel for Multidistrict Litigation (JPML). Perhaps the best practice pointer of the conference came from one of those judges: when you are arguing for a particular location for an MDL, do not linger on the quality of the airport. The judges do not care about that infrastructure point very much, if at all. Much more crucial is what is the center of the litigation, in terms of witnesses, documents, etc. In addition, before you launch into your one-two minute JPML argument, have in mind second and third choices for the transferee court. There might be reasons (e.g., a judge indicating no interest/availability in handling an MDL) why your first choice is a no-go.
Too many MDL transferee courts assume from the jump that the affair must end in settlement. That is bad enough. Still worse is when the transferee court designs everything in the MDL to drive the parties toward settlement. In the worst instances, that means bad rulings or, more typically, non-rulings. As is usual at these conferences, it was an in-house lawyer who had the temerity to challenge the initial, reflexive assumption that an MDL must pave a road to settlement. Sure, most of the MDLs do culminate in settlement one way or the other. But the process is not helped when one side sees the process as warped. Suspicion breeds resistance. In any event, settlement uber alles stinks. It needed to be said. It always does.
There is a plaintiff lawyer out there (many of you know him) who is aggressive and effective at everything he does. We have personally been murdered by him in court during discovery squabbles. We saw him slice and dice one of our experts at trial. With all that mayhem, you might think we would get hives whenever we are in the same room with this plaintiff lawyer. But no, he is brilliant, funny, and fundamentally kind. That he clobbers us every once in a while is part of the deal. (Think Hyman Roth in Godfather 2 – this is the business we have chosen.) One thing about this particular plaintiff lawyer is that when he predicts that something is going to happen in this business, he is invariably right. Our ears perked up when he discussed medical devices approved through the de novo process – in between premarket approval (PMA) and 510(k). If there is no predicate device for 510(k) purposes — something that happens more and more as time goes on and new technology is invented – the device is probably destined for Class III/PMA treatment. But maybe the device is not implanted or the risks are moderate, so the manufacturer proposes it be treated as a Class II device. Through the de novo process, the manufacturer can submit an application with a ton of data – basically as much as a PMA – about why the device is safe/effective and can be safely regulated without PMA. If FDA agrees, it promulgates specific rules for that particular type of device. The device that goes through the de novo process becomes the “predicate device” and then all future devices of that type can 510(k) off of that predicate. What does that de novo process mean with respect to preemption? The plaintiff lawyer opined that de novo devices were going to be more and more important and would raise interesting legal issues. Mark it down.
Inevitably, AI was a featured player at the conference. AI’s application in the legal field is already significant. That significance seems to be increasing exponentially just over the past couple of months. Anthropic’s Claude and other recently released products have supplied lawyers of all stripes with powerful tools. Judges also now have access to powerful tools, including some that enable them and their staff to identify hallucinated cases hiding in briefs. Be careful out there. The fact that judges are becoming more conversant with AI means that they will expect lawyers to do much more much faster. AI is making things much easier when it comes to analyzing medical records, comparing medical literature, drafting cross examinations, and- ta da! – early case vetting.
At the same time, AI lays traps for the unwary. What about deep fakes? Might we see fraudulent medical records? Might early vetting become a playground for AI mistakes – or worse? Did you know that it is possible to insert instructions into documents, via white ink and marginalia, that will force a reviewing AI program to veer away from its earlier instructions? Imagine the chaos that trick could cause. Anyone who would do such a thing would need to value their bar card cheaply, and the penalties for such abuse should be severe. But first it would need to be detected. Finally, if you are suing a company that develops AI products, would responses to inquiries posed to that AI product constitute party admissions?
Our usual test for any bench-bar conference is whether we learned at least one worthwhile thing per day. By that measure, this MDL bench-bar conference gets a high grade. We learned a lot from important sources about things that are happening, or will happen, in our occupational neck of the woods. And then, of course, there is the hackneyed but true observation that the most important things are the people you encounter along the way. We encountered judges who have devoted enormous blocks of time to trying to improve our system of justice. (Let’s face it: the judiciary is the only part of our government that is doing its job with skill and honor.) We encountered a defense lawyer who is at the very top of her field, and has been for many years, and who now is absolutely heroic and inspiring. We encountered plaintiff lawyers who are brilliant, conscientious, and infuriatingly magical.
We remember an episode of the sit-com Seinfeld in which one of the characters, Kramer, advises that one should get near a proctologist at parties because they tell the best stories. Our advice for bench-bar conferences is to get near lawyers and judges from Louisiana. At conferences we like to plop down at tables with people we do not know, just to make new acquaintances. By chance, a couple of times we ended up sitting with judges, plaintiff lawyers, and consultants from Louisiana. Whether the topic was bizarre lawsuits (trading of alligator hides), lawyers (like the late Danny Becnel) who could have been characters in a Mark Twain story, or what’ll you have to drink (one lawyer was gripping what had to have been a triple whiskey), people from the Pelican State are more colorful than their colleagues. Let the good times roll, indeed.
After the conference terminated, a group of us, both sides of the v as well as a couple of judges, headed for the hotel bar to watch game 2 of the NBA finals between the San Antonio Spurs and New York Knicks. None of us was from San Antonio and, for whatever reason, we were all rooting for the Knicks. (That came especially easy for us – the Drug and Device Law Son attended Villanova University, and the current iteration of the Knicks is essentially a Villanova squad that moved up the Jersey Turnpike to Madison Square Garden.) We cheered on the Knicks as they built a substantial lead, as they frittered away such lead, and as they ended up triumphing improbably in the last frantic seconds of the game. We swapped tall tales. We commiserated. During an hour or so of conviviality, we were all on the same side.