February 8, 2008
A Meaner Class Action World Without Lerach & Bershad
Other authors at this blog have been following the prosecutions of lawyers from Milberg, Weiss. Did those prosecutions have any effect on the world of class actions? The answer, according to lawyers at the Professional Liability Underwriting Society’s D&O Symposium on February 6, 2008 seems to be yes, but not in the way you would expect. There's no reduction in filings, but instead in collegiality. According to a defense-side lawyer at WilmerHale, "overcaffeinated 35-year-olds" are taking over some of the suits that Milberg Weiss would have brought. The article reporting on the conference, which you can find in the National Underwriter P&C, goes on to quote another defense side lawyer from Cravath:
the new lawyers are importing tactics from product liability cases, resulting in “an increasing inexorable tide of nastiness and incivility.” In particular, he referred to tactics such as filing discovery sanction motions, noting that while good-intentioned people on the defense side are trying to find “millions of pieces of paper,” they are being accused of “all sorts of high crimes and misdemeanors” by these younger attorneys who are “hijacking” the litigation process. [emphasis added].
These lawyers, at least, seem to be feeling the loss of repeat players. Securities litigation was rather predictable, they assert, allowing insurers to determine risk early on. The removal of these prominent plaintiff's attorneys from the scene is apparently changing all that. A couple of thoughts. First, I wonder if the Cravath lawyer concerned about good-intentioned people (and note that "good-intentioned" -- rather than well-intentioned -- are the words of the journalist and not the lawyer), had forgotten the recent flurry over the Qualcomm case when he made his comments. For more on Qualcomm, look in Law Technology Today and at the Legal Ethics Forum. Second, the overall tone seems to be that aggressive litigation is a bad thing (one lawyer is quoted as saying new lawyers make the case "about the process of litigation rather than about the merits"). But sometimes aggressive litigation is what addresses the merits, as compared with, say, just settling all cases in some smoky back room. I'm not saying that is what lawyers were doing before the entry of these over-caffeinated folks. But I'm also not against a cup or two if you're a bit slow in the morning. How do you determine the "merits" in the absence of litigation?
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"Aggressive litigation" that concocts fictional discovery violations and sanctions is exactly the opposite of litigating on the merits. It's about trying to win a case on grounds other than the merits, or to make life so miserable for opposing counsel that they have conscious or subconscious bias to settle a case that should be litigated.
There's also some false nostalgia going on if someone is claiming that Lerach et al. weren't engaged in nasty scorched-earth litigation. Just ask Daniel Fischel.
Posted by: Ted | Feb 8, 2008 1:13:23 PM