Earlier this year, Professor Arthur Miller published a summary of developments in civil procedure over the last several years, entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure.

Professor Miller is one of the giants of civil procedure. He may or may not have been the hard-nosed Professor Perini in Scott Turow’s memoir One-L. He was, for a select generation of us Bostonians, the host of legal affairs show Miller’s Court

But he’s also the head of Milberg LLP’s appellate practice. And he wears his plaintiff-side bias on his sleeve. For example, he refers to plaintiffs’ attorneys as "public interest attorneys" who oppose "defense interests."

The efforts of public interest attorneys go well beyond the classic civil rights and legislative reapportionment battles. Asbestos is held in check by the private bar. Tobacco is cabined by the private bar. Defective pharmaceuticals such as diet drugs, Vioxx, and other products are removed from our midst. Illicit financial and market practices of companies such as Enron are halted by the private bar. Today, a number of attempts are underway to hold accountable some of those responsible for the recent financial crisis. Fewer Americans die or become incapacitated by defective products or toxic substances, and important social and economic policies are enforced because of the work of these lawyers.

That bias hardly disqualifies Deformation for the defense attorney. In fact, it makes this article all the more valuable, since it is probably the most respected articulation of plaintiff-side thinking one will be able to find. So what does Professor Miller believe is the problem in federal procedure? He believes that the mandate of the Federal Rules was to bring cases to trial. As a result:

I am increasingly concerned about procedural changes that have resulted in the earlier and earlier disposition of litigation, often eviscerating a citizen’s opportunity for a meaningful adjudication on the merits of his or her grievance. Remember the image suggested earlier—the civil litigation gold standard—trial before a jury. Today, there are hardly any federal civil trials—let alone jury trials.

(Emphasis added.) In Professor Miller’s view, this de-emphasis on trial is an unmitigated problem. It infects the Private Securities Litigation Reform Act:

The Act erected a number of substantial procedural hurdles designed to encumber private securities fraud actions despite the lack of any real empirical proof that there was a need for such hurdles.

It transforms summary judgment motions into apocalyptic problems:

The [summary judgment] motion has taken on an Armageddon-like significance; it has become both the centerpiece and end-point for many (perhaps too many) federal civil cases.

The emphasis on reliability of expert evidence (enshrined in Federal Rule of Evidence 702) is simply an obstacle defense interests have placed on public interest lawyers:

Since judicial gatekeeping potentially requires screening every challenged expert, it represents another procedural obstacle, another motion, another hearing, and another potential issue on appeal, all causing more delay and expense. This, like other stop signs, plays into the hands of the billing-by-the-hour regime of the law firms that usually represent corporate and other economically powerful interests. It has precisely the opposite effect on contingent fee and public interest lawyers who must bear the increased cost and time investment without any assurance of reimbursement, let alone compensation.

Class actions are undercut by the need to certify a class:

The class certification motion thus has become yet another procedural stop sign undermining the utility of one of today’s most basic and important joinder mechanisms—admittedly a controversial one in certain applications—for handling relatively modest claims arising from conduct impacting numerous people.

Professor Miller’s observations are flawed in a few ways. First, he is willing to believe the absolute best of "public interest" lawyers, but the absolute worst of "defense interests." (I’ve been pretty candid about my own view: you need to believe both sides are capable of good and bad.). Since, as he admits, it is impossible to judge the merits of each sides’ claims in the aggregate, that bias skews his analysis significantly.

Second, Professor Miller appears unaware of the contemporary economic pressures on defense counsel. That isn’t to say that there aren’t significant differences between the plaintiff-side and defense-side business models. Of course there are, and they have siginicant effects on how a case gets litigated. But they’re rarely as simplistic as "do nothing, collect contingent fee" and "do everything, bill all of it."

More importantly, however, Professor Miller seems unaware of the significant pressures on the federal court system in general. Some of the judicial backlog, of course, is political.  But some is systemic. Cutting out methods of early disposition hardly seems like the way to make sure everyone gets their day in court; it seems more like a way of prolonging the time before anyone gets a chance.

So what can defendants take from this window into plaintiffs-side thinking?

  • Early challenges to lawsuits are effective. At least, they are effective enough to significantly worry plaintiffs’ counsel.
  • Plaintiffs still underestimate the costs of bringing their case to trial. If each of these obstacles is really as burdensome as Professor Miller describes, that suggests a failure to correctly estimate litigation costs, or, alternatively, a failure to imagine ways to reduce the out of pocket costs of litigating. That suggests that defendants should, pressures to reduce billing aside, remain patient. Plaintiffs may be less suited for the long haul than defendants.
  • Changing minds is probably not an option. Most people (and that includes most defendants) tend not to change their minds where their paychecks are at stake. Nonetheless, corporate defendants new to class actions sometimes believe that they may be able to convince the plaintiff in a given case that they have mistaken an isolated incident for a trend. The worldview on display in this article should counsel against relying on that strategy.