Tuesday, December 4, 2007

Judge Shopping

The New York Sun commented yesterday on Judge Jack Weinstein's popularity with mass tort plaintiffs and noted plaintiffs' tendencies for "judge shopping."  Here's an excerpt:

By and large, these suits, about 20 in all, against the tobacco and firearm industries didn't arrive on Judge  Weinstein's docket through a "spin of the wheel" — the random case assignment process by which suits are sent to judges. Instead, plaintiffs in the know have long used an administrative shortcut to maneuver lawsuits against the same set of defendants into the courtroom of their choice. Their choice is often Judge Weinstein.

In response, defense attorneys for the firearm and tobacco industries have alleged judge shopping and long tried to  get their cases yanked from Judge Weinstein's courtroom and reassigned, with mixed results. On Thursday, the issue  will come again to a head when a lawyer who has long represented the firearm industry, John Renzulli, will ask Judge Weinstein to recuse himself from a high-profile gun suit. The case was brought by New York City against out-of-state gun dealers who have sold handguns later recovered at crime scenes in the city.

It isn't the first time Mr. Renzulli has made this sort of motion — that was back in 1996. In the meantime, Judge  Weinstein's docket has drawn increasing scrutiny. There's even a judge on the 2nd Circuit, Jose Cabranes, who makes a  habit of quizzing lawyers about the matter when Judge Weinstein's rulings come up on appeal. "Is there a rule or practice in the Eastern District of New York that Judge Weinstein is assigned to all mega-cases?" the Judge Cabranes asked several years ago. The comments came during oral arguments reviewing Judge Weinstein's decision to try a case brought by Blue Cross and Blue Shield against the tobacco industry. The question has stuck with Judge Cabranes over the years. This September, he asked why the city's lawyers had taken a suit against firearm manufacturers "across the Brooklyn Bridge" to where Judge Weinstein sits, when the court in Manhattan was nearer to the city's law offices.

Judge Weinstein is known for his innovation in handling complex litigation matters.  Moreover, he's explicitly recognized the inherent commonalities between settling certified class actions and nonclass aggregation.  In the Zyprexa litigation, this led him to note that some conventions required for class litigation are likewise appropriate in nonclass aggregation. 

Of course, in the big picture post-CAFA scheme, we'll likely see an increase in judge shopping as plaintiffs attorneys' continue to adapt. 



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