Mark Herrmann, former contributor to Drug and Device Law Blog and Vice President and Chief Counsel for Litigation at Aon, Inc., recently authored and entertaining and enlightening post in the legal industry blog, Above The Law. In Inside Straight, Torpedoing Class Actions, Herrmann highlighted a 2009 book by Northwestern Law’s Martin Redish entitled Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit, in which Redish argues that as applied in current practice, class actions undermine the foundations of American constitutional law. Rather than exploring the nuances of Redish’s constitutional analysis, Herrmann uses the book to make a deeper point about the state of class action defense practice:
My gripe is this: Redish may be right, and he may be wrong; I’m not taking sides here. I haven’t read the cases, and I don’t exactly have any firmly-held beliefs about the nuances of the Presentment Clause (whatever the heck that is). But Redish is a smart guy. His ideas are surely plausible, and no law firm would be sanctioned for making these arguments in a brief. So where are the law firms? Why isn’t every class action defense firm in America mentioning to clients that these arguments exist?
This post is not intended to be a response to or criticism of Herrman’s commentary, as I don’t disagree with a word of it. Think of it instead as a supplement, intended to address the related topic of how clients can select outside counsel who will keep them abreast of arguments like the ones discussed in Professor Redish’s book. I have two simple suggestions, each of which I will expand upon below: 1) Hire bloggers, and 2) Ask for competing litigation strategy proposals before selecting outside counsel.
Hire Bloggers as Outside Counsel
Reacting to Herrmann’s post gives me an opportunity to engage in the blatant self-promotion that this blog was created for, if a bit less subtly than usual.
There is no better way to ensure that your outside counsel is up to speed on possible arguments than to hire blogger. Bloggers are constantly doing their own research and tracking in current issues, theories, and litigation trends from many different sources, including law reviews, trade journals, other blogs, news feeds, and court decisions. Those arguments that they don’t become aware of through their own study are often brought to their attention by their readers.
Blogging also reflects several other traits that are favorable in any outside lawyer. It shows a strong work ethic (after all, most of us do this in our spare time), and demonstrates intellectual curiosity. A blog also serves as a permanent public resource that any potential client can consult to get insights into a lawyer’s writing style, creativity, and analytical abilities.
Of course, none of this would be news to Herrmann, who was one of the premier Biglaw bloggers before moving in-house a few years ago. If I were looking for outside counsel in a class action, among the first lawyers I would consider would be my fellow Biglaw bloggers Andrew Trask and Russell Jackson, as well as Herrmann’s former blogging partner, Jim Beck.
For obviously selfish reasons, I’m highlighting bloggers here, but these same arguments apply to any lawyer who writes, lectures, or teaches in any medium. A frequent contributor to law reviews or trade journals an adjunct professor at a law school, a frequent CLE panelist, or even a lawyer who takes the time to actually read law reviews and trade journals (rather than simply let them pile up on the corner of a desk) can also have many of these same desirable traits. And, there are plenty of lawyers who can walk and chew gum at the same time (in other words, lawyers who are both able to keep up with academic trends and who know their way around a courtroom).
Seek Competitive Litigation Proposals
Especially in the current market, class action defendants have their pick of whom to select as outside counsel. Discounts and alternative fee arrangements are understandably a focus of outside counsel selection in today’s market, but the is no reason that cost considerations have to be considered at the expense of counsel’s ideas, arguments, and litigation approaches. If you are dissatisfied with the initiative or creativity of your current lawyer, why not ask multiple firms to submit competitive proposals for their litigation strategies before you hire them?
This approach has many advantages: it allows you to synthesize the ideas of attorneys with different perspectives and take advantage of all of their ideas regardless of whom you ultimately choose to represent you; it ensures that the attorneys that you ultimately select will have thought through potential arguments, and their litigation strategy more generally; it encourages creativity and discourages complacency. Attorneys should have the self-confidence in their abilities and ideas necessary to show a willingness to pit them against those of the competition before you start paying them. And, the willingness to put together a litigation proposal also demonstrates a capacity to give your matter the attention that it deserves. If you give them a fair shot, attorneys should always be happy to share their ideas on any given case even if they aren’t ultimately selected in every case. The benefits of a competitive selection of outside counsel in class action litigation seem obvious, and certainly the trend is in this direction, but too often I still see these decisions being made based on longstanding relationships or on who is the lowest bidder.
Asking for prospective counsel to share their ideas doesn’t just let you collect good ideas for the eventual defense in the litigation. It also gives you a chance to evaluate the thoughtfulness and completeness of a particular firm’s approach to the litigation. Take Redish’s book as an example. Herrmann’s thesis is certainly not necessarily that constitutional arguments can or should be raised haphazardly in every case, costs be damned. It is merely that clients should expect their counsel to be up to speed on all the possible arguments, however esoteric. So, knowing that Professor Redish’s book exists and then mastering his arguments are good first steps, but then there are a host of nuances to consider. For example, For every academic argument there is an equally compelling (at least to some) argument on the other side. What arguments could the plaintiff make in response to the constitutional arguments, and which set of arguments is more likely to be persuasive to the judge assigned to the case? What about the appellate courts? Also, what if the case strategy includes retention of a class action expert, a role that Professor Redish has had in past cases? Certainly, Redish’s arguments about the constitutionality of Rule 23 are a factor that any client would want to consider before retaining him as an expert witness.
In summary, while I agree wholeheartedly with Herrmann’s point that clients should be able to expect their outside counsel to keep abreast of academic trends, I would add there are some simple things that clients can do to better ensure that they have outside counsel who will do so.