Pradaxa Benchslap: “the defendants can’t fathom the Court was not persuaded”
[Update, December 9, 2013: Judge Herndon entered stiff sanctions today given Defendants’ misconduct in discovery. “As the Court mentioned hereinbefore, the question the Court has been asking over and over again has been answered. How can these problems keep happening? One of the problems to which the Court has been referring was that the defendants kept coming up with materials in an untimely manner. Materials were being turned over months and months late – often on the eve of a deposition. It is clear to the Court that the defendants have been pursuing a policy of turning over relevant material, or withholding relevant material, on their schedule and not the Court’s. In doing so, they have violated the Court’s case management orders. They have made misrepresentations to the Court in open court and in chambers. The defendants have caused the Court to believe that each defendant had a litigation hold, company-wide, on all relevant personnel and all relevant documentation and data (in their broadest definitions) at all relevant times.”]
Kurt Vonnegut wrote in Slaughterhouse-Five that The Brothers Karamazov was the one book “that can teach you everything you need to know about life.” Here’s one of the lessons from Dostoyevsky’s final novel:
Above all, don’t lie to yourself. The man who lies to himself and listens to his own lie comes to a point that he cannot distinguish the truth within him, or around him, and so loses all respect for himself and for others.
I thought of that advice when I read U.S. District Judge David Herndon’s “minute order” earlier this week in the In re Pradaxa (Dabigatran Etexilate) Product Liability Litigation:
MINUTE ORDER … Today, the defendants contacted the Court suggesting that the December 16, 2013 deadline [imposed by the Court] may reflect a misunderstanding as the defendants do not believe the Court could possibly have intended to order a production completion date for which the defendants will be physically unable to comply.
In other words, as with past orders, the defendants can’t fathom the Court was not persuaded by their argument and/or did not accept their assertions of fact. They cannot accept that the Court would not simply enter an order as requested by them. Therefore, they are now giving the Court an opportunity to correct this faux pas. To which the Court now responds, no thank you.
The Court considered carefully the assertions made by the defendants and weighed those assertions against the record in this case. On an assessment of credibility, the Court surmised that the defendants’ assertions of the time needed, in light of what has transpired in the past, was an exaggeration.. Signed by Chief Judge David R. Herndon on 12/4/2013.
(Breaks added for clarity; emphasis added) See it in all its glory on the ILSD ECF.
In the law blogging world, we call that a “benchslap.” (Back in 2005, David Lat coined the term to describe a “stinging slap” from a court.)
So how does a whole team of defense lawyers for Boehringer Ingelheim Pharmaceuticals — from prominent, experienced firms like Covington & Burling, Butler Snow, and Bryan Cave — get to the point of having such an order entered? I think there are two parts to it.
First, they and their client spent a year wearing the court’s patience thin with obstructionism, prompting sanctions; “I have never seen a litigation with so many ongoing problems. There has been a simple disregard of court orders that has frustrated the Court beyond comprehension,” said Judge Herndon back in September.
Second, they drank too much of their own Kool-Aid.
I can’t speak for all fields of law, but in the world of civil litigation, there is no greater hazard than succumbing to your own advocacy. As I wrote nearly three years ago, zealous advocacy may sometimes require a bit of self-deception, but it is surprisingly easy — and common — for lawyers to put so much effort into convincing themselves of something that they fail to recognize just how unconvincing they really are. Such is the only way they could end up with an order from a federal judge overseeing an MDL noting how they “can’t fathom the Court was not persuaded by their argument and/or did not accept their assertions of fact.”
So what to do about it? As Dostoyevsky recognized, telling the truth to yourself will always be a challenge. (As Vonnegut later wrote, “We are what we pretend to be, so we must be careful about what we pretend to be.”) If you don’t have the time or inclination for The Brothers Karamazov, perhaps skip to a more direct analysis of “the marvels and the flaws of intuitive thinking.”
Then, the next time you’re about to make an important decision in a case, go find someone whose frontal lobe hasn’t been contorted out of shape by years in the law and ask them what they think. You might spare yourself a benchslap.