With this post, I’ll be kicking off a new, semi-regular examination of the rhetoric that gets used frequently in class actions. What does rhetoric have to do with defending class actions? Like much of the rest of the law, everything. The rhetoric a party adopts helps to frame the issues for the remainder of the case.
One rhetorical tool is the allusion. An allusion can help to crystallize a legal point, making it more clearly and more persuasively than merely stating the rule would, by comparing it to a story that’s already deeply embedded in the judge’s mind.
Class-action defense employs a number of specialized allusions, such as comparing an ill-formed class action to Frankenstein’s Monster. But one of the most prevalent allusions in class-action practice is the plaintiff’s invocation of David and Goliath. The plaintiff will most often invoke this allusion in support of her superiority argument. The central premise is that a class action allows a powerless consumer (the David) to oppose a large, well-funded corporate entity (the Goliath). Or, as Judge Aldisert put it when he dissented in Katz v. Carte Blanche Corp.,
While there is biblical if not historical support for the motion that one David did slay a Goliath, the social desirability of consumer class actions was to insure that a David plaintiff has a Goliath capability against the Goliath propensities of his adversary . . .
So, how does one counter the David versus Goliath trope? The most powerful way to do so is to switch the analogy the plaintiff is trying to set up.
- Suggest that David is not powerless in this case. If the plaintiff is capable of bringing a real lawsuit for substantial damages, he may already have a Goliath capability. And, in many states, legislatures have enacted consumer-protection statutes that are specifically designed to level the playing field.
- Point out that this David is not fighting alone. Part of the power of the David versus Goliath story is the image of a lone boy facing down a giant warrior. In class-action litigation, there is often another Goliath (like a government agency) standing by specifically to keep the corporate giant in check.
In either case, the key to opposing David-versus-Goliath rhetoric is to bring the judge back to the fact that, in class-action litigation, the David is not stuck with only a rock and a sling. There are a number of other tools he can use, and those are usually superior to the class action.
(Image in public domain, obtained from Wikimedia Commons.)