The Supremes' "Mistrust of Lawyer-Driven Litigation"
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(photo by Michael Galkovsky)
We continue to sort through the end of the Supreme Court's term, as well as the business community's reaction to it.
Why do we care? Because you settle litigation when the risk of loss and the cost of proceeding is greater than the deal being offered to call the whole thing off.
As I've said a bazillion times before, I prefer negotiating a business deal to resolve a legal problem to predicting litigation outcomes -- the latter a dicey proposition at best. In ADR terms, I have a strong preference for "facilitative" over "evaluative" mediation practice.
Still, I'll never stop being lawyer, litigator and trial attorney. I will never be completely immune to legal developments suggesting that the tide is turning for one "side" or the other.
Today we hear Roy Englert Jr. of Robbins, Russell, Englert, Orseck & Untereiner quoted in Law.com's end-of-term article High Court Reveals a Mind for Business. Excerpt below.
The first big sign that Alito and Roberts were solid votes for business came on Feb. 20, when they voted with the majority -- and against Scalia and Thomas -- on the issue of punitive damages. In Philip Morris USA v. Williams, brought by the widow of a cigarette smoker, the Court ruled that jurors could not base an award in an individual case on the harm that tobacco companies did to others. Scalia and Thomas joined Ginsburg and Justice John Paul Stevens in dissent.
For Alito, as well as many of the other justices who have joined him or led him in business cases this term, suspicion of the plaintiffs bar might be one factor driving the pro-business trend.
"The entire Supreme Court has a mistrust of lawyer-driven litigation," Englert told a Washington Legal Foundation forum June 27. "The Court has inflicted a world of hurt on the plaintiffs bar. ... The justices don't see real, injured people. They see lawyers trying to extort settlements."
In Bell Atlantic v. Twombly, for example, Justice David Souter spoke repeatedly of the problem of "discovery abuse" by plaintiffs that "will push cost-conscious defendants to settle even anemic cases before reaching those proceedings." The decision, which got few headlines but may have broad practical effect, spells out higher requirements for what must be included in initial pleadings that businesses hope will weed out baseless class actions and other litigation.In another case this term, the Court also showed a mistrust of juries in deciding complex business cases. In Credit Suisse v. Billing, the Court said securities law should trump antitrust law, in part because the Securities and Exchange Commission had more competence than jurors in assessing possible antitrust violation in initial public offerings. But consumer groups worry that agencies such as the SEC are often too protective of the businesses they regulate.
In the Credit Suisse ruling, Justice Stephen Breyer wrote with concern: "Antitrust plaintiffs may bring lawsuits throughout the nation in dozens of different courts with different nonexpert judges and different nonexpert juries."
