There is a common perception in complex litigation (not to mention litigation generally) that time favors the defendant. Defendants often counsel clients not to react too quickly: situations that may provoke a fight-or-flight response in the moment often present more strategic opportunities as they unfold. And plaintiffs tend to agree; they often complain that defendants’ primary strategy is just to delay litigation for as long as possible.

But is there any basis for this assumption? After all, there are definite cases–like the motion to strike class allegations, or when plaintiffs try to change their theory late in the litigationContinue Reading

 A number of courts have held that Rule 23(a)(4)’s adequacy requirement mandates two inquiries:

(1) whether there are irreconcilable conflicts of interest between the class representative and the absent class members, and
(2) willingness and ability of the representative to take an active role in and control the litigation and to protect the interests of absentees.

The law on what constitutes a conflict of interest is well-developed. But what does "willingness and ability" mean? The Eighth Circuit recently shed some light on the question in the course of deciding an appeal in a civil-rights lawsuit, Rattray v. Woodbury County.… Continue Reading

Time is the ultimate budget constraint. Even the best of us only gets 24 hours a day. And sometimes, strategic decisions get made without perfect amounts of time. For class-action lawyers, this constraint is particularly clear in “rocket dockets” like the Eastern District of Virginia where deadlines are foreshortened and discovery can be massive.

But while we all have an intuitive feel for how time is a scarce resource for litigators, what does that actually mean when litigating? For one answer, we can look at Ortiz v. Fibreboard Corp., 527 U.S. 815, 863 (1999).

Issued more than a … Continue Reading