Add this blogClass Action Playbook Excerpt - Plaintiffs and Defendants
Today, The Class Action Playbook is available for sale. Yesterday, I posed what is probably the biggest objection to buying the book: why would plaintiffs' lawyers be interested in what a pair of defense lawyers have to say bout class action? So, from the introduction:
Our best answer is that we hope the proof is in the reading. In writing this book, we have aimed to provide an unbiased analysis of the strategic choices involved for both sides in class actions. To that end, we have tried not to speculate about plaintiffs or their motives. Our discussions of the plaintiff’s side of class-action litigation rely heavily on personal interviews with plaintiff’s lawyers, or statements or writing by plaintiff’s lawyers. We also have tried to be explicit about our assumptions and our biases.
In the end, we have either succeeded in providing an unbiased analysis or we have not. If we have, that should be reason enough to trust our analysis. If we have not, our biases still may make for useful reading. Defendants should get a good sense of strategy from their fellow-traveler authors, and plaintiffs should get an extensive view of how the other side thinks.
And what does that "unbiased approach" look like?
There is a deep ideological divide between plaintiffs’ and defense lawyers. Given the high stakes and high visibility of aggregated litigation, it is not surprising that class actions are controversial. Advocates see class-action litigation as a way for large numbers of victimized “Davids” to collectively obtain justice from a misbehaving “Goliath” when individualized lawsuits are economically impractical. Opponents see class-action litigation as a means by which profit-motivated lawyers exploit the in terrorum nature of an aggregated case to extort windfall settlements from unpopular companies or industries. The primary reason for these different caricatures of class actions is that plaintiffs and defendants live in worlds that are structured differently. (There are arguably different personality types separating most plaintiffs’ lawyers from most defendants’ lawyers, which result in each side approaching the risks of litigation in different ways. But it is difficult to say whether the structures attract the personality types, or are the product of them.)
In this book, we refrain from judging the motives of either side. Rather than argue about whether class actions prompt greedy plaintiff’s lawyers to extort nuisance settlements from blameless defendants, or empower socially conscious plaintiff’s lawyers to take on unethical corporations, we assume that some lawsuits are closer to the former caricature, and some to the latter. From a strategic standpoint, it matters less which side is in the right than which side is making the right moves. We will talk about goals and incentives, but those discussions are general and descriptive. Generally, plaintiffs’ counsel wants to win the largest possible recovery for his clients at the minimum possible expense, while defense counsel wants to put the litigation behind his client with a minimum of expense and effort.
Ideally, that approach should sound familiar to readers of this blog.
Andrew Trask has defended more than 100 class actions, involving all stages of the litigation process. While his work has