Class Action Countermeasures : Class Action Lawyers & Attorneys : McGuireWoods Law Firm : Complex Litigation, Mass Torts

A few weeks ago, I received a copy of the Fourth Edition of Class Actions & Other Multi-Party Litigation in a Nutshell in the mail. Since this is one of the "go-to" references for many practitioners, it seems worth discussion whether it's worth the investment to pick up the new edition.

A few disclaimers before I start. I received this copy without paying for it, presumably so I would review it. Dean Robert Klonoff was kind enough to provide a nice blurb for the first edition of the Class Action Playbook.  (That said, it hasn't stopped me from disagreeing with his work at times.)  

So, how is the new Nutshell? Like the previous editions, it's a great introduction to class-action law for law students and young practitioners. In just 470 pages, it manages to provide the basics behind each of the various concepts underlying Rule 23 and mass tort cases. Dean Klonoff clearly knows his stuff on Rule 23, and his updates manage to hit a number of major trends, including the effect of the Supreme Court's Dukes opinion, the move towards motions to strike class allegations, and the more nuanced analysis of the numerosity requirement that has occurred over the last few years. Like its predecessors, the Fourth Edition of the Nutshell appears aimed more at the law student than the practitioner. While there is a chapter on litigating class actions, it does not receive as much attention as discussions of the various legal doctrines underlying class-action litigation. That's a feature, not a bug. It's important to have a primer on the basic law governing class actions, and given how fast-moving that area of law has been, an up-to-date primer is essential.

I have only two very small criticisms of the Nutshell. First, in a few areas, it stretches to preserve the sense of conflict in the law where case law may actually have been largely settled. (The most striking example is in his discussion of claim-splitting, where Dean Klonoff offers only a 1978 district court case, Sullivan v. Chase Inv. Servs., Inc., 79 F.R.D. 246 (N.D. Cal. 1978) to counter the numerous appellate courts that have held that plaintiffs who split claims are not adequate class representatives.) The second small issue is that, because this is the Fourth Edition of the Nutshell, there are a few places where, structurally, the analysis dives into slightly more history than may be strictly necessary to understand some concepts. (For example, in the wake of CAFA, I'm not sure that an extended discussion of Zahn v. Int'l Paper Co. is strictly necessary to understand federal jurisdiction over class actions.) I get the impression these are holdovers from previous drafts that might go if the Nutshell were being written from scratch today instead of receiving a thorough updating. Of course, getting more analysis rather than less is hardly a major problem, and may provide valuable context to the law student.

The bottom line is that, like previous editions, this Nutshell is an excellent, inexpensive introduction to the law of class actions. Recommended.

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Back over the summer, I was approached to blurb Paul Karlsgodt's now-published World Class Actions: A Practitioner’s Guide to Group and Representative Actions around the Globe, which I did happily. Here's the text of the blurb:

World Class Actions is a comprehensive and practical look at everything a class-action litigator needs to know about mass litigation in other countries. In an increasingly globalized world, this is a book no international lawyer should be without.

That was the two sentences that would fit on the back of a book cover, and I meant every word. This, however, is a (long-overdue) blog post on an important work for class-action practitioners, so let me expand on that a bit.

The book is broken into 2 parts, with 31 chapters. The first, 25-chapter part covers aggregated litigation in every jurisdiction in which it has arisen, from the United States to Singapore. Need a quick primer on classwide evidence in South Africa? No problem. Want to know the procedures for representative actions against the government in Malaysia? This book has you covered. Idly interested in how Australian damages caps play into the certification debate? I'm worried for you personally, but yeah, it's in there.

The second part (5 chapters) covers issues that arise in transnational class actions, from international arbitration to various jurisdictional and evidentiary doctrines that might come into play.

Karlsgodt did not write the book alone; he wrote the US chapter and edited the overall manuscript, drawing on contributions from a number of international lawyers. And that raises the degree of difficulty of the book significantly. Keeping up to date is hard enough when one is covering a single country and wrangling a single co-author. Riding herd on more than 20 contributors and presenting something clear and useful is a singular editing achievement, and while I envy the result, I do not envy the effort that must have gone into it.

Moreover, the systematic approach the book takes makes it valuable to several audiences. First, World Class Actions would be worth the cover price (less than one associate billable hour) to a single firm facing a single out-of-jurisdiction case; the research hours it would save under those circumstances alone would dictate ordering it. Second, for non-American class-action practitioners (and I know from my blog stats you guys are out there), this should be an invaluable resource when addressing comparatively new questions. While the US is often skeptical of following the leads of foreign jurisdictions when novel questions of law arise, the same is not true for other countries. Finally, it is essential reading for students of aggregated or international litigation. Is notice and opt-out really the best way to handle aggregation? Here is an opportunity to watch how litigation plays out without protections in place. Are American-style class actions the most prone to abuse? See how other jurisdictions worry about similar issues.

There have been numerous, more expensive, and ultimately lower-profile attempts to collect data on how different jurisdictions handle class action practice. But Karlsgodt and his contributors have presented a definitive work that others will have a hard time beating.

[Disclosures: As a result of blurbing the book, I received a free copy. Also Paul has graciously reviewed The Class Action Playbook twice--very kindly each time--and he and I share an editor at OUP. Despite these crossovers, this review was not solicited.] 

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Anyone who writes or talks about negotiation strategy eventually has to address Getting to Yes.  It's the 800 pound gorilla in the negotiation field, and it has produced a vocabulary that, while occasionally jargony and unwieldy, is in constant use. Far more importantly, it contains some outstanding advice on how to negotiate in almost any context, even with difficult counterparties.

So, assuming that you've never read the book, what's it about? Getting to Yes advocates a method known as "principled negotiation." As the authors describe it, principled negotiation:

suggests that you look for mutual gains wherever possible, and that where your interests conflict, you should insist that the result be based on some fair standards independent of the will of either side. The method of principled negotiation is hard on the merits, soft on the people. It employs no tricks and no posturing.

In general, principled negotiation is an outstanding overall strategy, in no small part because it tends to work whether or not the other side uses it too. (And, for lawyers in particular, it has an added benefit. If you are continually referring to some fair, objective standard, then if the negotiation breaks down you are very well placed to defend your position in front of a mediator, arbitrator, or judge.)

In explaining this principle, Fisher & Ury present two primary insights that can help negotiators. Unfortunately, each also presents some specific problems in the class-action context:

BATNA - the "Best Alternative To Negotiated Agreement."

The reason you negotiate is to produce something better than the results you can obtain without negotiating. What are those results? What is the alternative? What is your BATNA--your Best Alternative To a Negotiated Agreement? That is the standard against which any proposed agreement should be measured. That is the only standard which can protect you both from accepting terms that are too unfavorable and from rejecting terms it would be in your interest to accept.

(Second emphasis added)  In business deals, the best alternative is often some agreement with someone else. In litigation, the best alternative to a negotiated agreement is litigation. And, more importantly, the best alternative for a defendant is the money it pays to the class and counsel, while plaintiff counsels' best alternative is the fees they will collect. (This is what class-action scholars call the agency problem with class actions.) The calculus is a little different than what Fisher & Ury have in mind.

"Creating value." - This is Fisher & Ury's other big insight. Their big example of it involves two children fighting over an orange:

[A]ll too often negotiators end up like the proverbial children who quarreled over an orange. After they finally agreed to divide the orange in half, the first child took one half, ate the fruit, and threw away the peel, while the other threw away the fruit and used the peel from the second half in baking a cake.

Leaving aside the fact that the authors' kids bake a heck of a lot more than I did in my youth, this kind of creating value can work extremely well in business negotiations. By taking a step back, the two sides can often agree on a division that allows each to get more value out of an agreement than they might out of just splitting the pot in two.  And there are no shortage of attempts to "create value" in class action settlements as well.  The difficulty is that Rule 23 constrains some of the creativity lawyers might exercise. This is not a bad thing. The "orange" problem that class-action lawyers are trying to solve is that the defendant does not want to pay much, but class counsel want large fees. So "creating value" in the class action context often means giving the class members something that doesn't cost much, but can be claimed as valuable enough to justify large attorneys' fees. And those are the exact agreements most likely to draw objections.

Despite these issues, Getting to Yes is still the definitive book on negotiations, and much of the advice in it (from how to evaluate your best alternatives, to how to deal with more coercive tactics from the other side) is extremely valuable. Class-action lawyers just have to make sure that in following the book's advice, they're not running up against the specific strategic problems posed by complex litigation.

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Last month, I received a flurry of email from various people who wanted to point me towards Mark Herrrman's column on Above the Law, "Torpedoing Class Actions." In that column, Herrmann reviewed Martin Redish's 2009 book Wholesale Justice, which argues that class actions are an unconstitutional delegation of state power to private lawyers. He also called class-action defense lawyers "derelict" and asked "Where is the practicing bar?" when it comes to advocating Redish's arguments.

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A few years ago, I attended an oral argument with a colleague. (He was there to argue a substantive motion in our case, I was there to take on the class-related issues.) It turned out we were in front of a hot bench that day: the judge clearly had formed several opinions of the case, and was not shy about peppering both plaintiff and defense counsel with questions--some seemingly out of left field--that forced each to justify his case. His approach clearly shook both sides a little. As we left without a decision on our motions, my colleague shook his head: "I just don't know what he was thinking," he said.

It's a common challenge among lawyers: what is my judge thinking? And it's a vital one; after all, if we know what a judge is thinking, we can better persuade him to rule in our favor. But most judges, while they reveal some of their thought processes during oral arguments and in orders, seem more opaque during the briefing process that takes up so many lawyers' time.

In his 2008 book How Judges Think, Judge Richard Posner of the Seventh Circuit Court of Appeals pulls back the curtain to give people a glimpse of--if not what a given judge is thinking, at least how he gets there. Why listen to Judge Posner? Leaving aside his long and accomplished record, he's a judge, and he consorts with other judges. And, as an appellate judge, his job is to second-guess trial judges. If anyone has an inside track on how judges think, it's probably him. How Judges Think has obvious benefit for lawyers. If you know how they think, you know how to best pitch your arguments.

So, what are Posner's main points?

Judges are not law professors, but they are part-time legislators. Given the way the common law works, particularly in the United States, judges frequently find themselves making what one might consider "legislative decisions" when deciding cases. (For example, when a judge distinguishes a previous case, he's usually providing a new rule, however specialized. To take an ancient example, the common law used to take any threatening gesture to be an assault, until someone put his hand on his sword--a threatening gesture--and growled that if it weren't the day the judges were in town, there would be trouble--seriously undermining the threat. New facts, new rule: saying you won't commit assault negates a threatening gesture.)

Judges engage in this kind of rule making without the benefit of specialized knowledge. Heavy caseloads mean don't have time to be experts in the various subjects that come before them, even--some of the time--the substantive law. (This is not a slam on judges' intellectual abilities at all. Mastering a specific legal discipline takes time and focus. Federal trial judges often have to pivot in the course of only a few hours between criminal sentencing, deciding a motion to dismiss a complex intellectual property case, and mediating a dispute involving the proper bounds of bifurcation of class discovery. That requires a lot of brainpower, but it does not allow the time for specialization.) As Judge Posner puts it:

No judge of [a federal court of appeals] can be an expert in more than a small fraction of the fields of law that generate the appeals he must decide, or can devote enough time to an individual case to make himself, if only for the moment (knowledge obtained by cramming is quickly forgotten), an expert in the field out of which the case arises.

Moreover, while professors worry about originality, judges worry about productivity. Or, as Walter Dellinger used to tell young lawyers:

A law professor's job is to say "Look at this; no one's ever argued this before." A lawyer's job is to take the same argument and say "Do this; it's how we've always done it."

In general, Judge Posner's chapter on legal academia ("Judges Are Not Law Professors") is well worth a read. He makes a lot of the same criticisms of academia that other judges have, but his dual role as prolific judge and prolific scholar gives those critiques some added oomph.

Judges have different external constraints from most of us. Article III judges are appointed for life, guaranteed a generous pension, and extremely difficult to remove once installed. (Leaving aside the political difficulty involved in impeachment, it is difficult to measure judicial output in a politically neutral fashion.) So they don't worry about getting fired, or making lots more money. (Though they would really like their cost-of-living adjustments.)

So what do judges worry about? They worry about handling their current cases as well as they can, clearing their backlog, and not getting reversed.

So backlog pressure keeps him working hard and reversal threat keeps him working carefully -- though an alternative strategy is to push the parties to settle, since settlements reduce backlog without risk of reversal.

(Here, Judge Rosenthal may disagree with Judge Posner; she thinks judges aren't as concerned about settlement anymore.)

Judges are people, but they have an extra set of internal constraints. What does this mean? It means that, like other people, judges ultimately can't outrun their prejudices.

A judge's personal background characteristics, such as race and sex, and his personal and professional experiences are among the nonpolitical, nonlegalist factors that have been found to influence his decisions.

In particular, given the grinding politics of the appointment process, judges are unlikely to be apolitical.

So, apart from the play of unconscious influences, we cannot expect federal judges to be complete political eunuchs, their decisions never influenced by politics because they have no politics. Such political neuters are unlikely to be appointed.

(Elected judges are more clearly affected by politics, for what should be obvious reasons.) According to Judge Posner, judges mostly use these intuitions as "tiebreakers." In other words, it's unlikely a lawyer can get a judge to ignore material facts or law, but in close cases different judges will lean in different ways.

That said, judges do face one important set of internal constraints. According to Judge Posner, judges are united in their use of "legal reasoning"--in particular analogy and distinction--keeps them from going too far afield. So does their sense of "common sense," which Posner explains as a healthy aversion to appellate reversal or legislative reprisal. (He doesn' mean judicial pay cuts, he means legislative responses like the Lily Ledbetter Act that functionally reverse a court ruling.)

So, based on all of this explanation, what specific practical advice can the class-action lawyer take?

• Don't be afraid to argue policy. Judge Posner refers to these policy arguments as "legislative facts," arguments about the effects that any common-law rule making will have. While they're especially persuasive to appellate judges, trial judges care about them too, especially during pretrial motions. And these kinds of "legislative facts" are particularly important in class-action litigation, where even small legal rulings have the potential to affect thousands (if not millions) of putative class members.
• Keep it simple. Judges aren't stupid, but they are pressed for time. The more a lawyer can help them master the material in front of them, the more persuasive that lawyer will be. (This is one of the reasons why--despite some lawyers' arguments otherwise--it's rarely a good idea to write "kitchen-sink" briefs.) This is particularly true in class-action litigation, which often overlays a complex procedure over complex substantive legal principles.
• Where possible, play to the judge's priors. After all, you don't always know where the close calls will be, and you want to get the benefit of the doubt in those places.

How Judges Think is well worth the read. And--along with Economic Analysis of Law--it's destined to be one of Judge Posner's most influential books. This is a book that should be on every practicing lawyer's shelf.

[Disclosures: When I was a student long ago, I worked on a number of Judge Posner's books. Also, despite the quotation marks, Professor Dellinger's statement is my best reconstruction rather than a direct quote.]

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For most class-action defense lawyers, dealing with the press is, while rare, a necessary evil. Plaintiffs' firms have taken to issuing press releases whenever they file a complaint. However, for defendants, the media is usually a separate front, one that moves much faster than discovery, and one that offers more perils than payoffs. Moreover, outside of expensive PR firms, there are few sources of advice on how to deal with a case that attracts press attention.

Enter Kendall Coffey, a Florida lawyer who has been involved in some of the more high-profile cases of the last few decades, including the negotiations surrounding Elian Gonzalez and the infamous Bush v. Gore. His book, Spinning the Law: Trying Cases in the Court of Public Opinion, discusses how to litigate high-profile cases.

For the most part, Coffey's book is not a perfect fit for civil litigants. The book primarily focuses on high-profile criminal trials, since those tend to receive the most press coverage. And it relies heavily on Coffee's own experience (which he does relay well), and a series of cutesy aphorisms ("Defense attorneys will ruffle feathers to keep their clients from becoming a cooked goose") that don't convey a lot of information.

However, the concluding chapter, A Media Primer for Spinners, offers an excellent introduction to litigating cases that have a press component. Among the lessons Coffey imparts there:

Press coverage can influence judges.

The ears of judges often have a chronic buzzing, particularly because they are not prohibited from following the news coverage of their cases. The law presumes that judges will ignore the media monsoons drenching the courthouse and decide every legal issue as if nary a drop had fallen. If we assume, though, that judges are real people who live in the real world--sometimes a world of judicial elections--it follows that they are acutely aware of community feelings about media-intensive cases.

In other words, the more press coverage of a given legal dispute, the more information outside the pleadings that the judge will likely absorb. And since judges are susceptible to rhetoric and spin just like other people, press coverage likely influences their rulings. This is certainly something that Richard Scruggs relied on in his PR strategy for his Katrina class actions.

Press coverage can generate fact development.

Good press is also a recruitment poster for lawyers, experts, and even fact witnesses. Winnability magnetizes cases. Lawyers and experts may be mercenaries, but even hired guns prefer to be retained by winners. For the top professionals who can pick and choose their cases, many prefer a cause that is acclaimed to one that is being acclaimed to one that is being defamed. Even fact witnesses, the main determinant of most cases, can be more effective if they believe their testimony will be featured in a success story. Just as many prefer to join the team with all the cheerleaders, horrible publicity can impair recruitment efforts

Coffey is not the first to note that press coverage can encourage fact witnesses to step forward. [] But it's a point that bears repeating.  Moreover, press coverage can also help class action defendants develop facts. Once class members begin discussing newsworthy cases, they often provide lawyers with variations that demonstrate that a class may not be appropriate.

Getting press coverage can be as simple as filing reporter-friendly pleadings.

Courthouse files largely immunize their contents from the laws of defamation, so reporters rely overwhelmingly upon court papers and hearings. As a result, press-savvy lawyers craft court papers that not only nourish procedural requirements but also feed the press.

In high-profile cases, or even ones where just a few reporters are clearly paying attention, filing a pleading that's written in plain English, with clear, emotional themes, can pick up press coverage. Plaintiffs often exploit this in complaints, but there is no reason that defendants cannot use the same tactic.

Talking points are not a bad thing.

Some legal strategists anticipate the initiator's huge advantage by preparing their own legal document with their key facts. While the defense will rarely have enough time to fully respond in writing to the just-filed accusatory document, first responders should consider something as basic as a nation for a status conference--a request to discuss general issues about court scheduling--loaded with defendants' best facts.

While Coffey suggests motions for status conferences as a means of getting a theme out to defeat a case relying on publicity, if the facts are strong enough, one can also just buy an ad refuting the allegations, much like Taco Bell did earlier this year.

Lawyers still need to be careful.

[T]he high-profile case is no place for amateurs. Attorneys with minimal media exposure should not handle media relations without true professional help. As a compromise, outside press consultants should strategize regularly, but a client's regular spokesperson or a media-savvy member of the legal team should handle the communication. … Bear in mind, though, that communications with a press specialist may not be privileged from subpoenas, and care should be exercised, particularly when exchanging correspondence and email.

The biggest problem with a campaign of "spinning" is that the lawyer doesn't control the news outlets. Reporters are--for the most part--pretty bright, and conscientious enough to not just take one side of a story. So overtly trying to control a story often backfires. And leaving a paper trail of one's attempts only makes matters worse.

In general, I'd recommend Spinning the Law. While the meat for class-action lawyers comes at the end, he's an engaging writer, which makes the journey fun on its own.

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 This is a tough year to be entering law school. Tuition is more expensive than ever. The job market for entering lawyers is worse than ever. And the combination of technology and cost pressures is changing the legal profession in ways that even longtime veterans have trouble getting their heads around. It's tough enough that the hot new legal blog is Professor Paul Campos's Inside the Law School Scam.

When young pre-laws (or 0Ls, as some call them) have asked my advice over the last decade, I've usually cautioned them to think long and hard about law school. Sure there's the now-crushing debt and the sometimes-brutal competition. But even in the days of lush lunches and the Brobeck bump, law was still a profession that ate its young. Even the most promising entry positions involve tedium, long hours, and intellectual drudgery. And many describe the process of making partner as a pie-eating contest in which first prize is more pie. But if you're a proud member of Law School Class of 2014, then you've probably already heard these warnings and decided they apply to the other guy.

So, so long as you're already in law school (or out in the larger, harsher legal world), my next piece of advice would be to buy yourself a copy of A Civil Action, and read it carefully.

A Civil Action has been a classic account of a mass tort case for years. When I was a wee baby attorney (not even, I was a first-year summer associate), reading it was my first assignment. I was the sole summer associate in the office of a small Boston firm, and much of the setting was the federal court in Boston. The book was not yet the perennial bestseller it is today. It was so new it was still in hardcover, and I could only locate one copy on the shelves of the local Borders. But I devoured it. Not just because it promised an inside look at complex litigation in Boston, but because Jonathan Harr did such a great job getting inside the head of the various lawyers.

For those who haven't read it (or seen the movie), it tells the story of litigation over cancer clusters in Woburn, Massachusetts. The plaintiffs, represented by tort lawyer Jan Schlichtmann, accused WR Grace & Company, which had a tanning plant nearby, of dumping various carcinogens into the local groundwater. The litigation spanned years, and resulted in a number of published opinions. In fact, it's since become a valuable teaching tool for civil procedure professors.

Jonathan Harr does an excellent job of providing a layperson's understanding of various motions practice and tactics. In particular, he provides a good early discussion of the defense's strategy behind filing a motion for Rule 11 sanctions against Schlictmann, a warning shot that hit a little too close to home, and set an often-hostile tone for the remainder of the case.

But what the book is really about--and this is the real reason to read it--is the personal toll complex litigation takes on the people involved: the plaintiffs, the defendants, and the lawyers.

"Rich and famous and doing good," mused Schlictmann. "Rich isn't so difficult. Famous isn't so difficult. Rich and famous together aren't so difficult. Rich, famous, and doing good--now, that's very difficult."

Harr, who spent most of his time shadowing the plaintiffs' team, gets in under the skin of the lawyers on each side, and his observations are useful for young lawyers. (Heck, they're useful for more experienced lawyers as well.) Among them:

Lawyers can take personal offense at various tactics. When the defense filed its Rule 11 motion against the plaintiffs, Schlictmann got personally offended at the tactic, a response that colored his strategy going into a crucial hearing.

Schlichtmann slammed the phone down. He was breathing hard, his face flushed, so angry that his hands shook. "This guy is an [expletive deleted]," Schlichtmann shouted.

When Schlichtmann got offended by the Rule 11 motion, he went out of his way to make the judge feel that same outrage. In fact, according to Harr, he spent more time on the emotional appeal of his argument than he did on the substance of his response. This is a rhetorical technique known as the "pathetic appeal," and many lawyers live by it. But, as Harr details, it is hard to make constant pathetic appeals without feeling the emotions you're trying to evoke. And if you can't evoke that emotion in others, the appeal may backfire (as it did on Schlichtmann).

Lawyers can get carried away with good news, too. In the course of their research, the plaintiffs retained Charles Nesson, who advised them they had a case that might be worth as much as a billion dollars. (Hence his nickname in the book, "Billion Dollar Charlie.") Despite their best efforts to remain calm, they're unable to dismiss the optimism that comes with the prediction. (They probably should have tried harder; Nesson has developed an idiosyncratic reputation in the years since.)

Litigation is full of highs and lows. Early in the book, Harr describes how Schlichtmann's car gets repossessed in the middle of a case. Later, he describes an opulent settlement conference at the Ritz-Carlton, one so excessive it actually backfires, convincing the defendants it would be better to fight than to settle. Towards the end of the litigation, Schlictmann moves into his office:

Although not without shelter, he had finally become homeless. He put his Dmitri suits in the reception-room closet, his silk ties and Bally shoes in the closet bathroom. He slept on a foldout couch in Crowley's office. He made herbal tea every night in the kitchen and watched television in the conference room. "It doesn't bother me living here," he said. "I'm a man of extremes. It's the middle ground I can't stand."

Not every lawyer experiences the specific financial highs and lows that Schlichtmann does, but complex litigation--with its demanding clients, aggressive adversaries, and insane workloads--does involve this kind of roller-coaster, feast-or-famine experience.

Intense litigation can be all-consuming.

Being in trial, Schlichtmann once said, is like being submerged in deep water for weeks at a time. The world above becomes a faint echo. War, scandal, and natural disaster may occur, but none of it seems to matter. The details of the case occupy every waking hour and usually intrude into dreams as well. Existence becomes spartan. When you finally come to the surface again, the world seems altered in fundamental ways. Win or lose, you set about rediscovering pleasures only dimly remembered. Colors seem brighter, food tastes better, the weather is of compelling interest.

This experience can be intoxicating for some, but it can also be profoundly disorienting. You'll notice Schlichtmann (through Harr) describes the experience in almost addictive terms. And for many lawyers, that experience can be addictive. If you want work to be your primary focus, that can be great. If not, it's somewhat less so.

So what can law students take from this book? Law school advertises itself as teaching students to "think like a lawyer." But it's just as important to know what it's like to feel like a lawyer. Lawyers are prone to bouts of excessive optimism and deep pessimism. They get angry, sometimes really angry. Human emotion is inescapable, and some lawyers deal with its effects better than others.

A number of studies have shown that you don't have to be rich to be happy. In fact, you may need as little as $40,000 per year in income. Instead, happiness with a job depends on some intangibles like being appreciated, and some tangible factors, like the length of one's commute.  So if, after reading A Civil Action, you still believe you'd enjoy the life--the whole life--that Harr describes, congratulations! You may have what it takes enjoy a fulfilling career as a lawyer. If not, it may be time to rethink litigation, because you may never find it that satisfying. (Don't worry that this says something bad about you. It doesn't. You're in very good company, including roughly half your law school class. And that includes many people who will make outwardly successful lawyers.)

[A brief personal note here, given the content: I am far from dissatisfied with my job. I've been extremely fortunate; I currently practice with a number of excellent class-action lawyers I admire a great deal. I have several clients I am outright proud to represent. And my colleagues are very tolerant of my writing compulsion. But I'm realistic. The legal life is not for everyone. I have known a number of talented lawyers who have moved on to other things where they are happier. And even the most satisfied practicing lawyers can identify with the characters in Harr's book.]

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 The other week, fellow blogger (and ABA Blawg 100 writer) Russell Jackson sent me a copy of Verdict for the Defense: Fighting Jackpot Justice with Firewall Defense Strategies by Greenberg Traurig lawyer Rob Herrington.  (Which just goes to show - sending books to bloggers can work.)

Verdict for the Defense provides a practical take on class action and mass tort defense, written for businesspeople rather than lawyers. (And you can tell. While most class-action books are heavy on the footnotes and the citations, this one alludes to the legal rulings, and focuses more on actual advice.) Herrington focuses on his area of expertise--products liability and consumer-fraud class actions--which enables him to provide specific counsel about how to head off potential class actions.

Herrington's "firewall" strategy consists of seeking out--and then blocking off--several of the more common, preventable sources of class actions. Starting from the premise that the best defense is to be a good company (one I wholeheartedly agree with), he recommends a full audit of the company's most popular products (the ones most likely to get the company sued in a class action) to make sure there are no (1) significant problems lurking or (2) minor, but recurring issues that might serve as the basis for a complaint. He also recommends a review of customer service, to stave off lawsuits that might originate from disgruntled customers or common internet complaints. Some of Herrington's advice is clearly aspirational: most companies don't aim to have bad customer service, but instead find themselves fighting against constraints like organizational inertia. And companies should, of course, be careful that any product audits don't provide blueprints for subsequent class actions. But in addition to the common-sense exhortations, Herrington provides some immensely practical advice for enabling the defense of largely meritless class actions, including:

• Being careful about choice-of-law clauses. As Herrington points out, a number of companies employ nationwide choice-of-law clauses that provide little advantage in individual cases, but make bringing nationwide classes much easier for plaintiffs. By contrast, choosing the law of the consumer's home state can serve as both a gesture of goodwill to customers and not hand plaintiffs' counsel a free pass to a nationwide class.
• Changing up contracts frequently to take account of changing circumstances. Many companies operate in constantly-changing regulatory environments, with constantly-changing products. Under those circumstances, it makes little sense to rely on possibly obsolete boilerplate. By performing a yearly review of consumer contracts, a company can make sure that it catches any glitches earlier rather than later, limiting its exposure over time.
• Writing attractive arbitration provisions. While the Supreme Court's Concepcion opinion clearly establishes a preference for arbitration, it never hurts to make sure that the arbitration procedure is one that truly aggrieved customers would actually want to use.
• Adding "more than compliant" advertisements into a rotation if some ads appear vulnerable. Given some of the fraud theories out there, there is clearly no way to lawyer-proof advertisements. But, should an ad appear to be an attractive nuisance for the plaintiffs' bar, it may not require a complete overhaul of a sound advertising campaign. It is possible to make incremental shifts to reduce risk by adding advertisements that disclose even more information.

So, can defense lawyers get anything out of this? Yes. Leaving aside Herrington's advice on litigating class actions (which, while sound, is probably a little low in citations for lawyers), it provides good insight into what a conscientious client will be thinking. More importantly, Verdict for the Defense helps identify what the best practices should be among clients. And that should help class-action defense lawyers act more like trusted advisors than hired guns.

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Richard Nagareda's object in Mass Torts in a World of Settlement, his only book-length theoretical work, was to show how settlements operate in a world in which aggregated litigation is common, and trial almost unheard of.

One of Nagareda's primary observations is that settlements of mass torts are best handled by some administrative apparatus. In the meantime, the legal system is evolving to become more administrative in response to these mass torts.

Nagareda starts from the premise that mass torts deal with "generalized" wrongs. (He argues that this phenomenon arises largely from industrialization, which allows for both wide distribution of products, and large-scale accidents. In other words, mistakes are bigger in the industrialized world.) He also points out that the vast majority of tort claims are resolved by settlement rather than trial, and that the settlement agreement "describes a business transaction." That fact, the transformation of legal controversy into business transaction, explains much about how class-action and mass-tort firms operate.

So, according to Nagareda,

Mass torts accentuate the role of lawyers as agents. As in traditional tort litigation, the endgame for a mass tort dispute is not trial but settlement. But the scope of the settlement differs. Here, the most ambitious settlements seek to make and enforce a grand, all-encompassing peace in the subject area of the litigation as a whole. Lawyers, once again, act as the designers of these deals, and the strategic motivations of lawyers on both sides shape the design of the peace.

(Emphasis added.) On the plaintiff side, entrepreneurial lawyers create the connections among individual mass-tort plaintiffs. As a result, they wind up with the best information about the "price" of the legal claims each plaintiff is asserting. That price is the price the defendant pays for a release from all claims related to the subject matter of the litigation. So the business deal that these lawyers are looking to strike is cash for the plaintiffs (and their lawyers) in exchange for peace from litigation for the defendants.

These transactions take considerable resources to set up. Plaintiffs' firms have to invest considerable resources into demonstrating causation, which they generally separate into "general" and "specific" causation. General causation shows the capability for harm. (There is a link between cigarettes and lung cancer.) Specific causation shows the harm actually occurred. (These cigarettes caused this case of lung cancer.)

But developing a theory of causation--particularly general causation--takes money. Experts need to be paid. So do those people who process the discovery the plaintiffs get from defendant corporations. It also points out that it costs money to recruit clients (which helps explain the rise of plaintiff "referrer" firms).

Moreover, plaintiffs who assume control of mass-tort litigation are asserting control not just against the defendant, but also against other plaintiffs' lawyers and even--to some extent--against the courts. And, if mass torts go on long enough, the endgame for the litigation may not be settlement, but bankruptcy, another administrative-like function of the courts.

So why do plaintiff lawyers spend so much money? Because it pays, richly. As several legal scholars have revealed, the "effective hourly rate" [http://www.manhattan-institute.org/lawyer_barons/index.html] of mass-tort lawyers is usually in the tens of thousands of dollars. (More about Professor Brickman's work next month.) As a result, Nagareda observes, a law firm's investment in litigation does not necessarily track the specific substantive merits of the case. Instead it tends to track the likelihood that a specific litigation will pay off in fees.

On the defendant side, the largest influence on settlement strategy is insurance. So Nagareda spends considerable time on the role of insurance in creating mass tort settlements and, in particular, the phenomenon of "stacking insurance." Stacking insurance means buying primary insurance, then excess insurance. Insurers in turn will buy reinsurance. What all this means is that a number of entities beyond the defendant may have an interest in the final settlement. And many of them have to invest resources in monitoring the progress of the litigation. (This is not always the case. In smaller class actions or mass torts, the defendant may be effectively self-insured.)

Nagareda does address classwide settlements specifically: he considers them good enforcement mechanisms for bought peace. (This is, in fact, how Amchem and Ortiz wound up in front of the Supreme Court; each case involved a court that took legal shortcuts in order to resolve a mass tort through a classwide settlement.) The primary problem with class settlements, however, (as Judge Easterbrook once pointed out) is that there's no chance to go through the "pricing" phase. But what classwide settlements do offer is preclusive effect. If the settlement doesn't prevent further lawsuits, it's not of much value to the defendant. (And this helps to explain the rash of recent cases involving preclusion.)

In general, Nagareda's insights are useful for defense attorneys. The more a defense attorney understands the "business plan" that drives plaintiffs in aggregated litigation, the better equipped she is to defend against it.

Nagareda's book also helps to explain why attempts at true administrative settlements, such as the BP spill fund, are not more successful. The plaintiffs' trial bar has a powerful financial incentive to oppose more administrative settlement mechanisms. Those mechanism may be more efficient, and they may get more money to claimants in less time and with less conflict, but they do so at the expense of attorneys' fees.

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 "Hey man, I don't practice law. I talk on the phone." -- Richard Scruggs, on federal wiretap

This week, Class Action Countermeasures introduces another regular feature: book reviews. Once a month, I'll be reviewing a book that has some relation to class action litigation. The primary purpose of the review will be to determine what class-action lawyers can learn that will assist them in formulating class-action defense strategies. (I've done this once or twice before.) First up is The Fall of the House of Zeus: The Rise and Ruin of America's Most Powerful Trial Lawyer, by Curtis Wilkie.

The Fall of the House of Zeus tells the story of Richard Scruggs. Scruggs began his career as a trial attorney in Pascalouga, Mississippi. He became one of the most financially successful attorneys in the country by extracting huge settlements from both the asbestos and tobacco industries. And he ended his career as a felon, convicted for attempting to bribe a judge.

Early in his introduction, Wilkie describes his subject as:

a remarkable story of personal treachery, clandestine political skullduggery, enormous professional hatred within the legal community, a zealous prosecution--all with ramifications that extended to high levels in Washington.

Wilkie delivers on that promise. The book is a fascinating portrait of Mississippi backroom politics, the plaintiffs' trial bar, and a single man wrestling with the effects of sudden wealth and gradual drug addiction. While the book is definitely sympathetic towards Scruggs, it whitewashes neither the crimes he committed nor his motives for doing so.

That said, the title of the book is a misnomer: by his own admission, Scruggs was no "trial lawyer." He was first and foremost a dealmaker whose most common tactics included:

• making large campaign contributions to various judges and prosecutors in Mississippi; and
• coordinating plaintiffs' counsel on large cases, including paying a number of lawyers not to interfere with his litigation.

Scruggs arguably was not even effective in his chosen role. Some of what he did to extract large settlements was either unethical or outright illegal:

• He bought documents from whistleblowers in at least two cases. (He bought 1,500 pages from a Brown & Williamson paralegal in the tobacco litigation; and paid the Rigsby sisters to be "consultants" so he could use their documents against State Farm in Katrina-related litigation.)
• He paid hush money to lawyers and politicians (including some no-interest loans) in order to cover up some of his conduct.
• And, of course, he famously tried to bribe a judge.

As a result, the litigation tactics Wilkie does describe largely involve setting up large, profitable agreements rather than trying to establish facts in a court of law.

• Scruggs consolidated cases that linked "a few strong cases with hundreds of lesser claims" as a means of inducing settlements from large defendants.
• He used smaller cases as "discovery engines" for larger planned litigation.
• And he passed along documents he did uncover to prosecutors to fuel investigations that would maximize the pressure on defendants to settle.

Ultimately, as Wilkie tells it, Scruggs's dealmaking was his undoing. Many of his alliances split up over the division of fees. And the crime that ultimately sent him to jail--trying to bribe a judge--arose from an effort to influence litigation over one of his fee agreements.

So what can defense lawyers learn from this book? The primary lesson is that--far more than most defense lawyers--class action plaintiffs' practice involves multiple fronts. Plaintiffs who follow Scruggs's model must coordinate with local officials, other lawyers who want a share of their action, the local press, and local politicians. (This lines up with the extensive email traffic Scruggs exchanged with the Rendon Group.) Moreover, plaintiffs lawyers may not always engage in direct tactics. Scruggs extracted large settlements by doing just about everything BUT the traditional practice of law. Clearly, not every plaintiffs' lawyer will follow the Scruggs model, but as Scruggs's career--and Wilkie's account of it--show, the backroom dealmaker fills an important niche in the ecology of the plaintiffs' bar.

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