Not every litigator wants to learn class actions; in fact, most do not. After all, why would anyone want to get mired in the procedural morass of a class action when they could be spending their time handling cases that have more personal appeal or that are just simpler and more likely to go to trial?
The class action bug bit me in 1997 when, after 17 years of handling a variety of business litigation matters, I participated in the defense of a putative nationwide class action brought against several oil companies. At that time, I saw several reasons to jump head first into class action work. They included:
1. The intellectual challenge of mastering a complex and ever-changing area of law;
2. The opportunity to work on large cases that are important to my clients; and
3. The opportunity to oppose what I perceived as all-too-frequent abuses of our judicial system.
These motivations remain true for me today. The law on class actions continues to evolve, high-stakes cases are still being filed, and there are still lawyers who launch meritless cases in search of big windfalls.
But what does it take to succeed in this field? I’ve given this a lot of thought, based on old and new experiences, and have come up with the following list of traits that are hallmarks of a good class action defense lawyer:
1. First and foremost, develop and maintain good courtroom 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 use the rules of evidence, and to think on one’s feet play as important a role in class action litigation as they do in litigating individual cases.
2. Become a student of Rule 23. Many litigators think that, just because they know how to litigate, they can handle class action defense even if they have no experience with it. They are wrong. Class action work is highly specialized, and 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, which can only be gained by experience. A generalist who takes on the defense of a class action against experienced class action plaintiffs’ lawyers would be well advised to associate himself or herself with an experienced class action defense lawyer. And inexperienced lawyers who want to work in this area should find mentors who will teach them the ropes as they go.
3. Learn Daubert. Plaintiffs often depend on expert testimony to prove their claims on a class-wide basis. Many of the experts I have faced in this context have failed to employ reliable methodologies. If Plaintiffs’ class-wide proof is inadmissible, their motions for class certification should be denied. A good class action defense lawyer will understand Daubert, will know how to conduct an expert deposition focused on Daubert issues, 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 writing, and often requires additional lawyers experienced in the substantive area of law at issue in each particular case. 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.
5. Be Professional. As with any litigation, it is easy to have disagreements with your adversaries. This may be especially true in high-stakes cases involving counsel with opposing philosophies about fundamental principles of justice. A good class action defense lawyer should avoid letting these disagreements become personal. Not only is personal animosity unproductive, but it can be counter-productive if and when it becomes time to talk settlement. In the class action arena more than any other, enemies may have to become friends. The attorney who fights hard but remains civil has the best chance of achieving success for his or her client.
Written by former litigation partner, Donald R. Frederico.