As I wrote two weeks ago, a petition for certiorari is pending in Bristol-Myers Squibb Co. v. Superior Court, a case that might change the rules for specific jurisdiction. A week ago, amicus briefs were filed by several large corporations and their lobbying groups, including a brief by GlaxoSmithKline that included these curious quotes and citations:
When’s the last time you saw a multi-billion-dollar corporation tell the Supreme Court of the United States to get the real facts about personal injury lawsuits from The Trial Lawyer Magazine and a six-year-old post on accidentinjurylawyerblog.com?
I’d certainly trust Ron Miller before GlaxoSmithKline. Sure, there’s reason to question the credibility of both: GlaxoSmithKline paid $3 billion to settle fraud claims brought by the Department of Justice, whereas Ron Miller didn’t follow me on Twitter until recently. Despite that obvious lapse in Ron’s judgment, he’s a trustworthy guy.
The citation to Ron’s blog is not the only time I’ve seen a legal blog cited in a brief. I recently saw a federal appellate court brief filed by a drug manufacturer include a citation to Drug & Device Law, a blog written entirely lawyers who represent drug manufacturers. I don’t have a problem with that, either. The citation to Drug & Device Law was in many ways a de facto extension of the page limits, because the post in question advocated for the same position the defendants were taking, but the same could be said for many of the nominally “unbiased” law review articles that are routinely cited in briefs and by courts.
But there are deeper issues we need to consider here. Are parties encouraging courts to decide cases based on facts outside of the record? Should courts decide cases based on advocacy pieces from non-parties? Are we really entering an era in which a lawyer can credibly support an argument by referencing something they read on the Internet?
I’ve written about this problem before. Three years ago, I wrote a guest post at TortsProf, noting the rise of “judicial omniscience” and fretting about “an increasing risk of [courts] becoming wholly unmoored from the facts of the disputes they are trying to decide.” Earlier this year, I noted the problems with “independent” court-appointed experts, giving the example of Judge Posner relying on WebMD for medical facts, despite WebMD’s rather poor reputation for reliability. And now we have lawyers’ blogs regularly cited in briefs filed with the highest courts in the land.
GlaxoSmithKline didn’t ask The Trial Lawyer Magazine or Ron Miller what they thought about GlaxoSmithKline’s argument. Instead, they cherry-picked quotes, made a passing remark, and moved on. That, I think, is the real problem here: whack-a-mole advocacy.
Whack-a-mole advocacy is perhaps the most common technique used by corporate defense lawyers. It’s quite simple: rather than address the issue at hand, the defendant loads their brief up with half-baked assertions. Sometimes it’s a policy argument, sometimes it’s a generalized factual assertion, and sometimes it’s a misleading description of precedent. Those type of throwaway arguments put the plaintiffs into a quandary: do they respond, and thereby inevitably draw the court’s attention away from the real issues, or do they let it go, leaving the impression that the assertion has been admitted?
I have a lot of faith in our federal judiciary, which is filled with some of the brightest minds and hardest-working lawyers in the country, and I have no doubt our judges have the wherewithal to evaluate these sorts of citations. I have no idea when my blog may have been cited in briefs, but I do know that a few years ago a federal court took the time to note one of the parties had provided a post of mine alongside an appellate brief from another case and a law review article. As the court correctly ruled, “none are relevant to this case at its present stage.” Oliveras v. Wilkins, 2012 WL 3245494, at *18 (S.D.N.Y. June 26, 2012); adopted by 2012 WL 3245493 (S.D.N.Y. Aug. 3, 2012). But judges are people just the same and, these days, they’re under enormous pressure.
Almost four years ago, I warned that corporate defendants were trying to get out of state court and into federal court — the same issue that GlaxoSmithKline is pushing — to exploit the slower pace of those courts due to growing judicial vacancies, and the problem has gotten much worse. Years of political obstructionism has crippled our federal judiciary. As Law 360 reports, the federal court for Idaho has a single full-time judge; twenty percent of the federal judgeships in Texas are vacant; and, the chief district judge for New Jersey, which has two “judicial emergencies,” works 11-hour days. Such is exactly the type of circumstance in which whack-a-mole advocacy works best, when the court doesn’t have the time it needs to sift through and scrutinize the arguments made and the factual support provided.
There’s no easy solution to this problem. A good start, however, would be for courts to be as skeptical of the arguments made by big corporations and big law firms as they are of arguments made by anyone else. If anything, their size just means they have more time to hit Google up for “evidence” that supports their argument.