Complex Litigation
Background
What is Complex Litigation?
Simple litigation involves a single plaintiff and a single defendant with P filing a complaint, D filing an answer, discovery, and trial (or pre-trial settlement).
Simple cases are becoming rare
Judges now commonly involved in pre-trial in some way (under traditional model, judge’s role limited; parties’ lawyers responsible for moving case along)
Complex litigation requires high degree of judicial involvement/supervision – created Manual for Complex Litigation and Judicial Panel on Multidistrict Litigation
Simple litigation à complex litigation
Litigation boom from creation of new rights to sue + FRCP procedures to bring
“Public law litigation” – Shift in type of litigation seeking reform in public institutions; rights derived from administrative/legislative regulations; effects people not before the court and judge’s continued involvement in administration
What makes litigation complex?
Lots of parties – more attorneys, more facts, more issues; issues of individual causation and who should be included vs. who should not
Lots at stake – bet the company type of lawsuits; increases discovery scope/lawyers; can be complex even if there are not numerous parties; prone to litigate all issues
Limited recovery fund for Ps to recover – Ps fight harder to win money first; internal disputes re: settling vs. litigating
Aggregation of claims – tension between individual issues vs. common issues; complication of which law governs; duplicative discovery
Factual complexity – involves expert witnesses, lots of discovery to explain complex concepts (ex: patent litigation)
Multiple parties complicate issues for several reasons:
Potential for many crossclaims/counterclaims
More lawyers
More issues and more parties fighting over them
Expansive discovery – more expensive, longer in duration, may need lots of experts
Contentious discovery – parties try to prevent disclosure (PR, legal reasons)
High risk – could be bet-the-company situation for one or more parties
Typical complex litigation situations:
Mass torts (e.g. asbestos cases, silicon implant cases)
Limited recovery fund – injuries not always equal, may have arguments over amount of fund per plaintiff
Forum disputes – products distributed globally, forum shopping likely; multiple districts and motions to consolidate
Individual issues – depending on nature of suit, injuries may take on highly particularized nature; causation problems for each party
Class actions
Lots of parties & issues
D typically oppose because more is at stake
Pros: allows public to enforce consumer protection (cannot depend on underfunded and biased regulatory agencies); effective to deter corporate wrongdoing; aggregation allows bringing claims that might otherwise not be brought (too expensive individually)
Cons: consumers pay for increased litigation possibility via increased product prices; deters investment in developing new products; drives good products from market; settlements benefit lawyers/business more than consumers; abrogates individual rights for collective
Patent litigation
Technical – issues complicated, need experts
Extensive discovery – design, manufacturing, nature of market, economic data, prior art
Fierce competition in marketplace – don’t want to reveal everything in discovery
Technology advances have also affected litigation: ease of transportation, technology advances, ease of document support. All advances have allowed lawyers to expand the scope of litigation/discovery
Inherent nature of FRCP – based in rules of equity which favor liberal joinder of parties/claims and liberal discovery; judges rely on this to justify aggregation
Central Themes and Considerations
Often see aggregation of claims. Aggregation allows for some kind of combined handling and possibly disposition of related cases and claims.
2 major policy goals of aggregation: Efficiency (economies of scale/avoidance of duplication) + Consistency of result
Consistency in results – with related cases staying separate, more likely to see inconsistent results on the same issues; single proceeding avoids different/conflicting outcomes
Serves interest of Defendants – more certain of law, better able to tailor operations to be in compliance
Serves interest of Plaintiffs – know bright line rule and what to expect in bringing/not bringing suit, also fair for similarly situated Plaintiffs to receive same outcome; timing is less important (no rush to sue before D goes bankrupt)
Serves the judicial system – lack of consistency would undermine the authority of the courts
Problem: may be tension between accuracy and consistency
One inaccurate ruling, consistency would foster injustice
Aggregation has affect on trial, becomes more focused on Defendant rather than injuries
Aggregation may not give proper regard to individual differences
Aggregated trials are complex, jury may be overwhelmed and less likely to produce accurate/just result
Judicial efficie
there is a substantial, reasonable and logical relationship to the claims, they are said to arise out of same transaction or occurrence
Cause of injury arose out of same type of policy or company-wide system (i.e. employment discrimination situations)
Same actions/actors not necessary, only needs to be a unifying, coordinated motivation from an identical source (different actors/circumstances, if basic cause of harm the same, should be joinder)
Gives rise to the most joinder issues
Question of law or fact common:
Different effects from harm immaterial; all that matters is CAUSE of harm is similar
Merely needs to exist, does not need to be of central importance to the case
NO joinder when:
No overarching policy and the ultimate cause of the harm was different in each case (regardless of similar harm/circumstances)
Cases are too isolated from one another
Different witnesses and individualized proof
Ex: claims happened over 13 year period so warnings labels on product would be different for each claim
Ex: drugs in issue came from many different physician, hospitals and diet centers
Toxic tort cases are harder for joinder (harder issues of causation and exposure) than product liability (arises out of identical product defect causing similar injuries)
In cases where there is likely to be a large amount of redundant testimony, joinder should be granted. (Stand n’ Seal – below)
Courts often apply “logical relation” test to determine if action arose out of same transaction or occurrence: “All ‘logically related’ events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence.” (used in Mosley v. GM)
Rule 20 may interact with Rule 18. Once you have satisfied Rule 20 joinder of a defendant, you may bring (under R18) any claim you have against that defendant, regardless of its relation to the main action.
Courts often consider the remedy sought as important to whether or not joinder will be permitted.
