There is no avoiding the fact that class actions are complicated. They involve large numbers of claimants, an extra set of procedural rules, and often invoke complex federal statutes like CERCLA. As a result, all parties find briefing class certification to be challenging.
So it’s a good thing we have LaBaouve v. Olin Corp., 231 F.R.D. 632 (S.D. Ala. 2005). According to the 53-page, 112-footnote opinion, LaBaouve was a monster of a case, involving allegations of mercury contamination in an Alabama town, reams of scientific evidence, and complex questions of standing and causation. Even the best advocates would have a hard time distilling this case down to its essence. So, as he sifted through the voluminous briefing to decide class certification, Judge William Steele offered some very sound advice about what not to do when briefing a complex case.
• Leave no argument behind.
“Particularly in a case of this magnitude, a litigant’s interest is best served not by raising every conceivable argument (no matter how implausible or unpersuasive), but by judiciously identifying and pressing the stronger arguments while leaving the weaker ones behind.”
The defense had no shortage of arguments, including strong challenges to both predominance (causation was particularly individualized) and ascertainability (the class definitions were fuzzy at best), which is why the court was surprised it challenged the plaintiffs on easy-to-meet numerosity:
“Defendants’ insistence on contesting Rule 23(a)(1)’s applicability … is one of the more obvious examples of needless detours imposed upon this Court by both sides’ ‘slash-and-burn,’ ‘object-to-everything’ strategy.”
• Use lots and lots (and lots) of exhibits.
The parties may have thought that the more evidence they each presented, the better; the court disagreed. Noting that the hearing exhibits, placed on top of each other, would dwarf then-Houston Rockets center Yao Ming, it observed that
“the parties may not, by the simple expedient of dumping an undifferentiated mass of evidentiary material into the record, shift to the Court the burden of identifying evidence supporting their respective positions.”
• Cite the cases that support you, no matter what.
General Telephone Co. of the Southwest v. Falcon, a 1982 Supreme Court opinion that established the “rigorous analysis” standard for class certification, is one of the definitive precedents in class-action practice. So the court was perfectly reasonable when it held that
“To the extent that plaintiffs rely on pre-Falcon authorities in support of a more liberal or lenient standard than the ‘rigorous analysis’ required by the Supreme Court, the Court declines to adopt them here.”
• Subtlety is for losers.
Trial lawyer Max Kennerly recently advised lawyers to always write angry briefs, but never file them. Judge Steele would agree:
“Plaintiffs’ briefing of the history of events at the Olin facility frequently lapses into vituperative disparagement of defendants. For example, plaintiffs deride Olin’s "corporate greed" and "arrogance," lambast its "profits over people corporate philosophy," accuse it of hiring a contractor "who enjoyed Olin’s brand of deceit," characterize Olin as an "unrepentant polluter," and lament that "[t]here is no end to Olin’s misconduct." Such inflammatory rhetoric may be appropriate in a closing argument to a jury; however, it is distracting and unhelpful in the context of a class certification brief.”
(Citations omitted.)
Briefing class certification is always difficult, and there’s no right way to do it. Ask ten class-action lawyers, you may get ten valid approaches; so long as they don’t include anything on this list.
Know of any other bad briefing habits? Mention them below in the comments.