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Class Actions & Derivative Suits

How to Be a Better Class Action (Defense) Lawyer

By Donald R. Frederico – August 28, 2014


Class action defense work is not for everyone. Just as most lawyers don’t want to be trial lawyers, most trial lawyers don’t want to be class action defense lawyers. The disadvantages to doing class action work are many. Class actions are rarely sexy, they hardly ever go to trial, they require a familiarity with some ever-changing and often arcane case law, and they can be unwieldy. And sometimes your friends and family just don’t understand why you would choose to be on the defense side of the cases.


Despite these disincentives, in 1997, after years of litigating and trying cases that were not class actions, I decided to focus my practice on class action defense. I had several motivations, all of which still pertain:


The intellectual challenge of mastering a complex and ever-changing area of law. My first deep involvement in class action defense work occurred the same year that the Supreme Court decided the landmark case of Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997). Even before the ruling was announced, I was intrigued by the jurisprudence that came before it, and I was impressed by lawyers who could cite chapter and verse of some of the key decisions. I was also fascinated by arguments made by leading plaintiffs’ class action lawyers who tried to spin the Amchem decision into a win for the plaintiffs’ bar, which required tremendous chutzpah. Although sometimes a decision comes down that some interpret as the end of class actions, the plaintiffs’ bar has a way of adapting to new and challenging circumstances. Class actions are still being filed, the law continues to evolve, and a good class action lawyer needs to stay abreast of every twist and turn. I can honestly say that in my time practicing in this area, there has rarely been a dull moment (and they have never lasted very long).


The opportunity to work on large cases that are important to my clients.
I confess I generally don’t enjoy working on small cases. I prefer cases where the stakes are high and the issues are complex. The higher the stakes, the more important the cases are to corporate clients, and the greater the complexity, the more they require a high degree of expertise. Not surprisingly, class actions tend to receive a relatively high priority within most companies, demanding a close working relationship between in-house and outside counsel. Such relationships, when they work well, allow for the most effective, and the most enjoyable, representation. Also, because of the relatively high exposure of many class actions, clients are generally more willing than in smaller matters to authorize the reasonable expenditures necessary to do a good job and achieve a successful outcome, however success may be defined. While even a class action defense lawyer needs to be sensitive to his or her clients’ need to control its legal spend, most corporate counsel overseeing class litigation understand that foolishly cutting corners to save a few dollars is usually not a good strategy.


The responsibility to combat abuses of our judicial system. Although I spend much of my professional time trying to prevent the certification of putative class actions, I don’t presume that all class actions are bad. I recognize the social utility of some class actions and that class certification can, at times, actually benefit corporate defendants. But from my vantage point, and the vantage point of most of the business world, class actions also provide significant potential for abuse. Too many cases brought as class actions lack merit, yet their mere pendency exerts undue pressure on corporate defendants to accede to extortionate demands in order to avoid the risk of exorbitant judgments. And despite the bona fides of many plaintiffs’ class action lawyers, there are still those who care only about recovering attorney fees and not about the interests of their clients or the members of the class they seek to represent. In defending such cases, I believe I am doing more than representing a corporate client; I am also protecting the interests of some of its stakeholders, where their interests and the interests of the company align. After all, a bad result for the corporate defendant can, in many circumstances, also harm its shareholders, its employees, or even its customers. And, because an incorrect application of Rule 23 can run roughshod over a defendant’s due process rights, I view one of my roles as advocating for fairness and rationality in what can easily become an unfair and irrational process. I, and most class action defense lawyers I know, take these responsibilities very seriously.


Since I started down this path, the legal marketplace has changed. The supply of lawyers has outpaced the demand, and although there are specialized areas of practice that can still absorb qualified candidates (intellectual property law, for example), the need for general commercial litigators has diminished. Class action practice has not been immune from these pressures, as more and more lawyers from more and more law firms compete for seemingly less and less work. Nevertheless, many new lawyers hoping to find some degree of security in a niche market see class action practice not only as an interesting area in which to practice but also as a potential safe harbor in an otherwise stormy profession.


Not everyone is cut out to do this work, just as not all of us are cut out to handle corporate transactions or real estate deals. But there are certain steps that young lawyers can take, and certain attitudes they can adopt, toward eventual mastery of class action practice. I offer the following five. Although some of the specifics focus on their applicability to defense attorneys, these recommendations are generally applicable to plaintiffs’ lawyers as well.


1. Develop and maintain good courtroom and litigation skills. Even though class actions don’t often go to trial, the skills of a trial lawyer are essential to doing the job well. The ability to conduct a direct and cross-examination of a fact or expert witness, to present a cogent argument in a trial or appellate court, to know how to work with the rules of evidence, and to think on one’s feet play as important a role in class litigation as they do in litigating individual cases.


Other litigation skills are also critical for the class action lawyer. They range from the very basic, such as good research skills, to the more advanced, such as taking and defending depositions. And because so much of what we do is written advocacy, becoming an effective legal writer is imperative.


A prerequisite for anyone aspiring to be a class action lawyer, therefore, is to hone one’s skills as a litigator and trial lawyer. Gain experience in individual cases, latch onto a mentor who has the trial experience you lack, and seek out formal training programs in litigation and trial skills. These types of efforts will give you the foundation you need to practice class action law.


2. Become a student of Rule 23. Although being an effective litigator is necessary to becoming a successful class action lawyer, it is not sufficient. The myth that just because a lawyer knows how to litigate, he or she can handle a class action is both pervasive and pernicious. Class action work is highly specialized, and it requires a solid understanding of Rule 23 and the continuously developing case law that interprets and applies it. It also requires knowledge of how class actions work in practice.


There are many organizations, programs, publications, and blogs for those who want to gain expertise in this area. Readers of this article are obviously aware that the Class Actions and Derivative Suits Committee of the ABA is an excellent resource for learning more about class actions. The ABA’s annual National Institute on Class Actions is also an outstanding seminar designed for both beginners and advanced class action practitioners. Other resources abound, and aspiring class action lawyers should seek them out. Time spent doing so represents an indispensible investment in the development of your career.


3. Learn Daubert. A court deciding whether to certify a class action must decide whether the plaintiffs’ claims can be proven on a class-wide basis. Plaintiffs most often try to meet this burden through expert testimony. For example, an expert may opine that a product is plagued by a common design defect affecting every unit manufactured, or an expert might offer statistical testimony to show that the price of a product or service has been uniformly inflated by the defendant’s alleged fraud or antitrust conspiracy. If the court is persuaded that the expert will be able to present reliable proof of injury to the entire class, the case may well be certified. Conversely, if the expert fails, the case fails.


There has been some uncertainty concerning the role of Daubert in class certification motions. Although it was hoped that the uncertainty would be resolved when the Supreme Court decided Comcast, Inc. v. Behrend, it was not. Nevertheless, Daubert motions, designed to test the admissibility of critical expert testimony, can in appropriate cases be key to the class certification determination. A good class action defense lawyer will understand Daubert, will know how to conduct an expert deposition and work with defense experts to set up the Daubert motion, and will know when to play the Daubert card (and when not to).


4. Be a team player. Class action defense is a team sport. In addition to lead courtroom counsel, it typically requires lawyers who are skilled at electronic discovery, legal research, and legal writing, and it often requires additional lawyers experienced in the substantive area of law, the industry at issue in the particular case, or both. In most cases, it is also critical to work closely with in-house counsel and to make sure that they are actively engaged in the team’s efforts. All of these lawyers, young and old, experienced and inexperienced, need to work together in a spirit of collaboration toward the shared goal of delivering high-quality and effective representation to their client.


5. Be professional. In addition to working professionally with his or her team, a good class action lawyer learns to work professionally with his or her adversaries. As in any litigation, it is easy to have disagreements with your opponent. This may be especially true in high-stakes cases involving counsel with opposing philosophies about fundamental principles of justice, or where one side stands to gain or lose a great deal depending on the outcome of the case. Like any lawyer, a good class action defense lawyer should avoid letting such disagreements become personal. Not only is personal animosity unprofessional and unproductive, but it also can be counterproductive if and when it becomes time to talk settlement. Because attorneys settling class actions have to unite, sometimes against common foes, to gain the necessary court approval, in the class action arena more than in any other, enemies may have to become friends. The attorney who fights hard but remains civil has the best chance of forging new alliances and achieving the best possible result for his or her client.


When it comes to class actions, there is a stark divide between the plaintiffs’ bar and the defense bar. Whichever side you choose for your practice, however, there is no substitute for doing the job well. Developing the skills and experience needed to accomplish that goal is a process that takes years, not weeks or months. But with healthy doses of commitment and patience, you can ultimately achieve the satisfaction and enjoyment that each of us strives for in our professional lives.


Keywords: litigation, class actions, Daubert, Federal Rule of Civil Procedure 23, professionalism, young lawyers, how to become a better lawyer


Donald R. Frederico is a partner at Pierce Atwood, LLP, in Boston, Massachusetts.


 
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