A couple weeks ago, I wrote about how lawyers abuse “meet and confer” requirements to obstruct civil discovery. This time, let’s talk about lawyers obstructing discovery by responding to discovery interrogatories themselves, rather than by having their client answer.
It’s a common progression of events:
1. Lawyer A serves a bunch of interrogatories on Lawyer B.
2. Lawyer B responds with a bunch of boilerplate objections. (See my prior post for more.)
3. Lawyer A threatens to file a motion to compel.
4. Lawyer B “answers” some of the requests either:
a. by sending a letter that generally discusses discovery (rather than a formal discovery answer actually answering the specific interrogatories) or
b. by serving a formal discovery answers signed by the lawyer (rather than signed by the party).
Tellingly, small and mid-sized casualty insurance firms that litigate and try cases all day long rarely insult plaintiff’s counsel intelligence or the court’s time with such nonsense. I wish I could say the same of the big corporate law firms I’ve dealt with, but they seem to do this as a matter of routine, repeatedly sending vague letters about discovery that never answer the discovery requests. Often, they act insulted when I gently point out that their vague letters and emails mean far less to me than their client’s sworn answers.
It may seem pedantic to just quote the Rules at length, but I have come to believe that a significant percent of lawyers — including highly-paid litigators — either haven’t read the rule or don’t care about their contents. Continue reading
I read a lot of book-related publications and blogs, and thus I have endured weeks of Hachette-versus-Amazon posts, as the publishing giant has wrangled with the online retail giant over the terms of their contract. Perhaps unsurprisingly, the writers and publications with ties to the “Big Five” in the publishing industry have sided with Hachette, whereas the commenters to the articles and the blogs (most of which are presumably customers of books) tend to wonder why a garden-variety dispute between two big companies over money is being billed as the downfall of civilization.
I ignored most of these articles until I read Steve Wasserman’s* op-ed in The Nation — which argues “the time has come for closer scrutiny and regulation of a company that, like Standard Oil a century ago, provides an indispensable service for a modern economy and a healthy culture” — and I just couldn’t take it anymore. For the sake of our “modern economy” and “healthy culture,” we must stop calling Amazon a “monopoly.”
Please don’t misunderstand: I believe in the vigorous enforcement of antitrust laws in all industries. I’ve written before about how the Supreme Court wrongly decided Bell Atlantic v. Twombly, which made it harder to begin antitrust cases of any sort, and wrongly decided Comcast v. Behrend, which made it harder to win antitrust claims on behalf of consumers. I wrote before that the Bush Administration’s policy was “that anti-monopoly law was so dead there was no point in the Justice Department even bothering to enforce it,” and I applauded when the Obama Administration rescinded that policy and took seriously the threat of monopolies.
But we can’t be cavalier about accusations of “monopoly” or “predatory pricing,” or we risk diluting the terms and losing sight of real antitrust violations. Amazon is neither a “monopoly” nor a “monopsony.”
A “monopoly” is when one supplier of a particular product or service is able to control the market. That does not remotely describe Amazon: the vast majority of books sold by Amazon are supplied by someone else, i.e., the publisher, and those same books are available elsewhere. As Hachette’s own statement on the Amazon dispute says:
HBG’s titles are widely and immediately available on barnesandnoble.com, powells.com, booksamillion.com, walmart.com, target.com, overstock.com, and in thousands of great chain and independent bookstores across the country.
It is rather hard to have a “monopoly” over sales of something when the exactly same product is also sold online, through the largest retailers in the country, and through “thousands” of independent stores.
A “monopsony” is when one buyer of a particular productive or service is able to control the market. (Consider, for example, if there were several commercial airplane manufacturers, but only one commercial airline.) “Monopsony” is potentially a better fit for Amazon than “monopoly,” because Amazon’s real pricing power is that it can push a hard bargain with publishers when it buys the ebooks, whereas with consumers Amazon sells the books at or below the prevailing market prices. And, indeed, publishers feel obligated to deal with Amazon given its position as the largest retailer of ebooks.
But the claim just doesn’t hold up. In a monopsony, the monopsonist refrains from buying to force the suppliers to start discounting against one another (because there are no other buyers), until they are no longer making a profit. That simply isn’t the case here. First, the publishers have total control over where they sell their ebooks, and they exercise that power: the “Big Five” chose to not participate in Amazon Unlimited. Second, the ebooks are available all over the place, like Walmart and Target. Apple, for example, has used the feud as an opportunity to discount Hachette’s books. There’s nothing wrong with Apple doing that: this is competitive capitalism working for the benefit of consumers, as it should.
Even if a company is not a monopolist or monopsonist, it can engage in predatory pricing — but Amazon didn’t. Wasserman claims, “the Obama Justice Department, seemingly mesmerized by visions of a digital utopia, is oddly blind to the threat to publishing posed by Amazon’s growing monopoly,” and concludes, “A serious Justice Department investigation is past due.” But the Justice Department already investigated Amazon as part of the Apple case, and they published the results two years ago.
Back in 2012, as part of the settlement with the Big Five publishers for their admitted collusion with Apple to raise prices, the Justice Department solicited public comment, receiving hundreds of comments, including from Barnes & Noble, the Authors Guild, and the American Booksellers Association. As the Justice Department summarized in its response to the comments, the most common complaint against Amazon is that it sometimes charges too little for ebooks, and that “that lower pricing will mean reduced profits for bookstores, authors, literary agents, and publishers, and an eventual reduction in quality, service, variety, and other benefits to consumers.”
In response, the Justice Department explained — I know this is a long blockquote, but it’s the root of the issue — on page 21-22:
The United States recognizes that many of the comments reflect a concern that a firm with the heft of Amazon may harm competition through sustained low or predatory pricing. In the course of its investigation, the United States examined complaints about Amazon’s alleged predatory practices and found persuasive evidence lacking. As is alleged in the Complaint, the United States concluded, based on its investigation and review of data from Amazon and others, that “[f]rom the time of its launch, Amazon’s e-book distribution business has been consistently profitable, even when substantially discounting some newly released and bestselling titles.” Compl. ¶ 30.
Some of the criticism directed at Amazon may be attributed to a misunderstanding of the legal standard for predatory pricing. Low prices, of course, are one of the principal goals of the antitrust laws. Cf. Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 340 (1990). This is because of the unmistakable benefit to consumers when firms cut prices. Id. “Loss leaders,” two-for-one specials, deep discounting, and other aggressive price strategies are common in many industries, including among booksellers. This is to be celebrated, not outlawed. Unlawful “predatory pricing,” therefore, is something more than prices that are “too low.” Antitrust law prohibits low prices only if the price is “below an appropriate measure of . . . cost,” and there exists “a dangerous probability” that the discounter will be able to drive out competition, raise prices, and thereby “recoup its investment in below-cost pricing.” Brooke Group v. Brown and Williamson Tobacco Corp., 509 U.S. 209, 222-24 (1993). No objector to the proposed Final Judgment has supplied evidence that, in the dynamic and evolving e-book industry, Amazon threatens to drive out competition and obtain the monopoly pricing power which is the ultimate concern of predatory pricing law. The presence and continued investment by technology giants, multinational book publishers, and national retailers in e-books businesses renders such a prospect highly speculative. Of course, should Amazon or any other firm commit future antitrust violations, the United States (as well as private parties) will remain free to challenge that conduct.
This is basic antitrust law. Professor John Kirkwood recently agreed in his article, “Collusion to Control a Powerful Customer: Amazon, E-Books, and Antitrust Policy.” As he wrote, “considerable evidence suggests that Amazon was engaged in loss leading, not predatory pricing. … Amazon was almost certainly using loss leading not as a predatory device but as an efficient promotional tool, drawing consumers to its website to buy products they might not otherwise purchase.”
But sometimes an ounce of common sense is worth a pound of legal analysis. Consider this part of Onnesha Roychoudhuri’s article calling for increased regulation:
What’s a book lover to do? Hachette authors have taken the fight online, calling their readers to boycott Amazon. In spirit, I’m all for a boycott, but given Amazon’s size and ubiquity, we’re not going to buy our way out of this, and we shouldn’t. The idea that we can spend our way to a more just world reduces us in value to the money we’ve got in our wallets. Nor should the responsibility lie solely with us as consumers. And that’s where regulation comes in.
What sense does that make? If you don’t like how Amazon deals with ebook publishers, then stop buying ebooks from them! A boycott is exactly the right idea — vote with your wallets! Amazon is not Bell Telephone. Amazon is not Standard Oil. Amazon is not the Hollywood studio system.** If you don’t want to deal with them, you don’t have to; the fact that everyone, from publishers to consumers, continues to want to deal with Amazon is proof enough that they’re not abusing a monopoly position, they’re just doing a better job.
* Wasserman, says his bio, “served as editorial director of Times Books and publisher of Hill & Wang, an imprint of Farrar, Straus & Giroux. He is a past partner of the Kneerim & Williams Literary Agency and is currently editor at large for Yale University Press.”
** Wasserman gives one example of “precedent,” United States v. Paramount Pictures, Inc., which broke up Hollywood’s studio system. There, the Hollywood studios (i.e., the suppliers), conspired to preclude independent theaters from showing their films, thereby controlling the theater market. It is indeed precedent: it’s similar to what the ebook publishers did to Amazon by refusing to sell their books to it except on very specific terms.
Back in 2012, I wrote: “Scientific evidence is one of those rare areas of law upon which every lawyer agrees: we are all certain that everyone else is wrong.”
There have been some missteps in the law’s use of scientific proof as evidence in civil litigation — like when the Supreme Court affirmed a trial court holding in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), that an engineer with a Masters in Mechanical Engineering who had worked in tire design and failure testing at Michelin was nonetheless incompetent to testify about tire failures — but, by and large the standard articulated in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) makes sense. Courts review an expert’s methods, rather than their conclusions, to ensure that the expert’s testimony has an appropriate scientific basis.
To go with the baseball metaphors so often (and wrongly) used in the law, when it comes to Daubert, the judge isn’t an umpire calling balls and strikes, they’re more like a league official checking to make sure the players are using regulation equipment. Mere disagreements about the science itself, and about the expert’s conclusions, are to be made by the jury in the courtroom.
In practice, though, the Daubert standard runs into problems when courts erroneously decide factual disputes about methodology and conclusions, issues which are better left to cross examination of the experts at trial. Consider the June 27, 2014 opinion in the Zoloft birth defects multidistrict litigation, which struck the testimony of plaintiffs’ “perinatal pharmacoepidemiologist,” Dr. Anick Bérard. Dr. Bérard holds a Ph.D. in Epidemiology and Biostatistics from McGill University, teaches at the Université de Montréal, and has conducted research on the effects of antidepressants on human fetal development. The expert was going to opine that “Zoloft, when used at therapeutic dose levels during human pregnancy, is capable of causing a range of birth defects (i.e., is a teratogen),” an opinion based upon her review of a variety of studies showing a correlation between SSRI use and birth defects. The court had multiple grounds for striking the opinion, but a key issue relating to statistics jumped out at me. Continue reading
This month the Smithsonian has long profile on Anthony Bourdain that ends with, “What would you like your last meal to be?” In typical Bourdain fashion, the meal he has in mind is virtually impossible to get without reservations weeks in advance: a sushi course at Sukiyabashi Jiro, the three Michelin star restaurant profiled in the excellent documentary Jiro Dreams of Sushi. As Bourdain explains:
Watch the film and you will understand. It is an 88-year-old man doing the same basic 30 or 40 basic cuts of Edo-style sushi, meaning nothing innovative. Every night he’s been going to sleep for his entire life; how do I make that standard shrimp over rice better, better, better, better? …
Rice is magical. Rice is an explanation of everything.
Jiro’s rice has been described as “like a cloud.” The documentary interviews Jiro’s rice dealer, who scoffs at the frequent requests he gets from other restaurants and hotels to sell them the same rice — none of them realize the the enormous amount of effort and skill it takes to cook the rice properly.
If you haven’t seen it, you can read more about the documentary in various reviews online, like this one from The New Yorker. Here’s a clip where Jiro explains what it means to be a shokunin, improving his craft bit by bit every day.
I thought that idea could make a nice setup for a post, and then I realized I couldn’t possibly write about something like that without reviewing Keith Lee’s The Marble and the Sculptor, which came out back in November. He sent me a copy with a handwritten inscription over the title page promising that, if I didn’t like it, the author would be sacked. I have no doubt that Keith consciously decided to write a handwritten note because he felt it would make more of an impact (which it did), and that he inferred I would recognize the Monty Python joke (which I did). Keith is one of those folks who recognizes and attends to details like that, which is why his book is worth reading.
“Employ your time in improving yourself by other men’s writings, so that you shall gain easily what others have labored hard for,” is an insightful quote often attributed to Socrates, although the closest Socrates quote I can find with a historical source is “while gold and silver cannot make men better, the thoughts of the wise enrich their possessors with virtue.” The point is the same either way, and Keith has plainly employed his time thusly. The book touches upon many of the best writings in self-improvement, ranging from James Altucher on career development (page 17) to George Orwell on writing (page 35) to Winston Churchill on public speaking (page 37) to Peter Drucker on work performance (page 93) to Henry Rollins on discipline (page 108). (The links I’ve put here are to informative writings by each.) Continue reading
Two weeks ago, I attended the Pennsylvania Bar Institute’s Federal Bench-Bar Conference, which featured a panel discussion on “Ethical Issues During Depositions: Hypothetical Scenarios.” The panel included two federal judges and two Fellows of the American College of Trial Lawyers.
The panel raised a number of interesting issues. It also tried to tackle the vexing questions of how, exactly, you stop an opponent from obstructing your deposition and how you identify and prevent manipulation of a witness’s testimony. Deposition misconduct and discovery obstructionism are subjects I’m keenly interested in (and subjects I’ve spoken on as part of an ABA panel), so I had to go.
Before we get into the substance, let’s discuss a bit of background. Most of my writings on the subject are gathered in this post on deposition preparation, along with links to others’ reactions. An ABA article (“Ethical Preparation of Witnesses for Deposition and Trial”) a few years ago summarized the general ethical considerations at play:
A lawyer has a duty to prepare a witness to testify. This preparation may include discussion concerning the application of law to the events in issue. But “[a]n attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.” Geders v. United States, 425 U.S. 80, 90 n.3(1976); Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993). Thus, the prohibition of counseling or assisting a witness to testify falsely also applies to the influence that an attorney may have on the substance of a witness’s testimony in the preparation process.” An attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line when she influences the witness to alter testimony in a false or misleading way.” Ibarrav. Baker, 338 F. App’x 457, 465 (5th Cir. 2009) (citing John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277(1989)).
Now, let’s get back to the substance of the panel. The most interesting part to me was the discussion over when a lawyer can stop a deposition, despite a pending question, to speak with their client. We’ll call this a “witness conference.” Continue reading
An article last month in The Harvard Crimson (“The Changing Face of the Law Professor”) explained that, fifty years ago, the typical Harvard Law School professor was someone who knew a little about the law but nothing about how it works:
“Somebody who got into a top law school, did very well and then completed a prestigious clerkship was well situated to be hired on the basis of those credentials,” said Law School professor Richard H. Fallon, who attended Yale Law School and clerked for U.S. Supreme Court Justice Lewis F. Powell.
These days, however, the typical Harvard Law professor is someone who knows a little about the law, a little about something else, and nothing about how either works in real life:
Now, however, the Law School looks for a greater breadth of academic qualifications in its prospective faculty, including “demonstrated scholarly accomplishment, a promising research agenda offering both relevance to legal analysis or law practice, and an ability to present and effectively defend a thesis or argument before faculty members,” according to Law School Dean Martha L. Minow.
Notice the elephant not in the room: a prospective faculty member does not need to show any ability whatsoever to practice law, nor any ability to effectively teach the law to students. They can get by with “scholarly achievement,” “a promising a research agenda … [relevant to] legal analysis,” and an ability to charm other faculty members.
Only legal education tolerates this sort of circular, self-referential pedagogy in a practical field. Doctors are trained by practicing physicians. Even “academic medicine” is closely tied to the actual practice of medicine by way of teaching hospitals and clinical research. Would you learn how to design and build cars from people who had never designed one before?
This isn’t a new issue (the impractical nature of legal education has naturally been the focus of intense legal scholarship, none of which produced any useful change), and Harvard Law’s approach is by no means unique to them. Law schools across the country have increasingly considered experience to be unnecessary. That’s not new.
What’s new is to see the law school that produces the most politicians, the most federal judges, the most law professors, and, with one of the largest graduating classes of any law school, a helluva lot of practicing lawyers, look out on the dismal field of legal instruction and then tout inexperience and non-legal scholarship as virtues. It’s a smack in the face to everyone who has tried to fix the problems with law school, and it creates two big problems, one for the quality of legal practice, the other for the health of our democracy. Continue reading
Civil procedure in the federal courts has changed dramatically over the past few years, primarily through the Supreme Court’s manipulation of doctrine to encourage lower courts to dismiss tort, class action, antitrust, and civil rights cases. As I wrote a year ago in a guest post at TortsProf:
[A]s the courts become increasingly obsessed with deciding complicated cases by reference to procedural doctrines that ask the court to leave its expertise in the law and feign expertise in complex factual situations, courts run an increasing risk of becoming wholly unmoored from the facts of the disputes they are trying to decide. If a primary concern about tort litigation is that it is unpredictable — as is often stated by tort reformers — then everyone should be concerned when judges decide for themselves the dispositive facts of cases.
In early May of this year, Professor Suja Thomas had published an article in Judicature explaining how the summary judgment standard had “become a proxy for a judge’s own view of the evidence.” In one of her examples, she compared the majority and dissent opinions in Scott v. Harris, 127 S. Ct. 1769 (2007), a civil rights case involving a police chase, and just how far the majority had to leap to enter summary judgment for the defendant, preventing the plaintiff from ever presenting his case to a jury.
Then, on May 5, 2014, came Tolan v. Cotton, a civil rights case with depressingly common facts: with slim-to-none probable cause, a police officer instigated a confrontation with homeowners and ended up shooting a family member, permanently injuring him. There, all nine members of the Supreme Court agreed that the underlying court had dismissed the case based on their own view of the evidence, and so reversed the entry of summary judgment: Continue reading
The most sacrosanct tenet of American law is enshrined on the facade of the Supreme Court: “Equal Justice Under Law.” The aspiration is ancient; the phrase comes from Pericles’ funeral oration. My favorite rendition of the concept as applied in American law is in To Kill A Mockingbird:
But there is one way in this country in which all men are created equal—there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution gentlemen, is a court. It can be the Supreme Court of the United States or the humblest JP court in the land, or this honourable court which you serve. Our courts have their faults as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal.
Apart from the obvious examples (e.g., the Equal Protection Clause), the law promotes equal justice in a variety of ways, including by preventing lawyers from arguing to a jury that a party’s wealth or poverty either absolves or indicts them. It may be true, as a practical matter, that a wealthier party can sometimes use their superior resources to thwart equal justice — or, at least, delay it — but lawyers all agree, or at they’re expected to say they agree, that any injustice is a shame on the legal system.
With that context, let’s talk about “The Hustler,” which was The New Republic’s name for Tom Goldstein, founder of SCOTUSBlog and name partner at Goldstein & Howe, which is self-described as “an appellate boutique focusing on representation before the United States Supreme Court.” He’s made a living off of arguing consumers can’t sue natural gas companies for manipulating prices, or that cities should be able to shut of residents’ water because their landlord didn’t pay the bill, or that it’s unconstitutional for West Virginia to tax coal companies for the coal pulled out of their mountains, or that drug companies have a right to use patient data to lean on doctors who don’t prescribe their medications enough.
These days, Goldstein is representing multi-millionaire poker player and stuntman Dan Bilzerian, who received a demand letter from Janice Griffith related to an accident that occurred after she apparently agreed to be thrown off a roof into a pool last month as part of a photoshoot for Hustler magazine. Here’s a video of the incident. She didn’t make it all the way to the pool, and broke her foot. Continue reading
Vanity Fair has a profile of Federal Judge Denise Cote (of the Southern District of New York) that revolves around her involvement in the Apple–Amazon e-books antitrust brouhaha. The article is helpfully titled “The Judge That Apple Hates” for anyone who didn’t know how the case turned out.
I wrote about that case when the Department of Justice first filed it, voicing my support for the DOJ’s claims. Whatever one thinks of Amazon’s impact on the book publishing world, it’s hard to dispute that Apple and the publishers entered into a collusive agreement for the purpose of raising prices — the primary evil our antitrust laws are designed to prevent. In the end, all the book publishers settled, and the DOJ went to trial against Apple alone. Judge Cote ruled in favor of the DOJ, and the case is now on appeal.
Vanity Fair’s description of the opening statements at the trial caught my eye:
Only 10 days [before trial] Cote … had shared a “tentative view” on the merits of the case with the lawyers, just as she had done in many other cases and as she said she would do here if both sides consented. Stressing it was tentative—as she noted, she had only reviewed the court papers and had yet to hear the testimony and arguments—she said she believed the government would be able to prove that Apple “knowingly participated in and facilitated a conspiracy to raise prices of e-books.”
So now, playing a clearly losing hand in Cote’s courtroom, [Apple’s lawyer Orin] Snyder chose to meet Cote head-on—and challenge her fairness. To a judge who prides herself on her scrupulousness, it was a declaration of war. “No party, big or small, whether the biggest company in the world or an individual defendant, should start trial with the deck stacked against it,” he pleaded. “So we respectfully and humbly ask this Court to erase, hit the delete button on any tentative view that might exist in the Court’s mind today.”
Has corporate America and its lawyers become so accustomed to winning in the courts, so self-assured by judicial recognition of their “right” to manipulate elections and to quash consumer lawsuits with arbitration agreements and insurmountable legal standards, that one of the most profitable and valuable corporations in the world feels ‘the deck is stacked against it’ if a judge fails to give their self-serving assertions a round of applause? Continue reading
For lawyers who represent birth malpractice victims, few phrases conjure up as much ire and frustration as “the ACOG report,” the shorthand for a 2003 document put out by the American College of Obstetricians and Gynecologists (“ACOG”) called “Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis.” Despite its title, the report made no effort to explain how a doctor could determine the cause of a particular child’s cerebral palsy, and it made no effort to explain how the incident of neonatal encephalopathy (i.e., newborn brain damage) could be reduced. (Bob Schuster has a little more on its origins, and MedScape has a summary of it.)
Rather, the sole purpose of the report was to prevent children with cerebral palsy caused by labor and delivery malpractice from obtaining compensation, which it accomplished by giving a cover to insurance company’s efforts to confuse judges and juries into believing that babies could survive hours without adequate oxygen and suffer no consequences. The report established core four “essential” criteria, and five “suggestive” criteria that, ACOG claimed, had to be met before a child’s cerebral palsy could be linked to hypoxia at birth.
Sure, in the “Task Force on Neonatal Encephalopathy and Cerebral Palsy,” ACOG dressed up their preordained conclusions in scientific and medical jargon and gave passing nods to basic principles of honest medical research, but the report was worthless from a medical standpoint. It wasn’t a real compilation of medical information, like a Cochrane Review or UpToDate, and it didn’t give any recommendations on how to diagnose or treat patients.
Instead, the report was used constantly in birth injury litigation by paid experts testifying on behalf of obstetricians and hospitals sued for ignoring the signs and symptoms of fetal distress and failing to treat fetal hypoxia. If you brought a hypoxia birth injury claim anywhere in the United States after 2003, you could be assured that the ACOG report would be front and center in the defense, with the veneer of “scientific” and “medical” proof.
ACOG wasn’t responsible for coming up with most of the “essential” and “suggestive” criteria, but instead cut-and-pasted them from the International Cerebral Palsy Task Force’s 1999 “template for defining a causal relation between acute intrapartum events and cerebral palsy,” available here. You can see a comparison of the ACOG and International guidelines on table 3 of this article.
The International Task Force’s criteria was suspiciously strict to begin with, like with their criteria for blood pH and Apgar scores. Continue reading