Antitrust and Unfair Competition Law

Competition: Spring 2019, Vol 29, No. 1


By Jill M. Manning1

In 2018, the Golden State Instituted continued the tradition of hosting a panel of judges with backgrounds and experiences managing class actions, antitrust cases, and other complex litigation. Three distinguished Northern District of California jurists—Judge William H. Alsup, Judge Edward M. Chen, and Magistrate Judge Laurel Beeler—offered their insights and perspectives on these issues in a panel discussion moderated by Jill Manning.

MS. MANNING: Good afternoon. My name is Jill Manning, and I am honored to be here today to serve as the moderator of this distinguished panel of federal judges from the Northern District of California, all of whom have a wealth of knowledge and experience in managing complex and class-action litigation.

To my immediate right, please welcome Judge William Alsup. Judge Alsup graduated from Harvard Law School and served as a law clerk to Justice William O. Douglas of the United States Supreme Court. He worked in private practice in San Francisco and as an assistant to the United States Solicitor General in the United States Department of Justice. He briefly served as special counsel in the antitrust division of the Department of Justice. He was nominated by President Bill Clinton to a seat on the United States District Court for the Northern District of California, the seat vacated by Thelton Henderson in 1999. Welcome, Judge Alsup.

To Judge Alsup’s right is Magistrate Judge Laurel Beeler. Judge Beeler graduated with honors from the University Of Washington School Of Law. She served as assistant U.S. Attorney in the Northern District, prosecuting complex white-collar cases with parallel civil components. She was a law clerk to the Honorable Cecil F. Poole, United States Court of Appeal for the Ninth Circuit, and then civil appeals division chief at the Ninth Circuit’s office of staff attorneys. She was appointed as a Magistrate Judge to the Northern District in 2010. Welcome, Judge Beeler.

To Judge Beeler’s right, we have Judge Edward Chen. Judge Chen graduated from the University of California at Berkeley School of Law. After graduating, he clerked for U.S. District Judge Charles B. Renfrew and U.S. Court of Appeals Chief Judge James R. Browning. He joined the legal staff of the ACLU Foundation of Northern California in 1985, where he served until joining the court in 2001. From 2001 to 2011, Judge Chen served as a federal magistrate judge for the Northern District of California. Judge Chen was nominated by President Obama to the United States District Court in 2009. Welcome, Judge Chen.

We’re thrilled to have each of you here today.

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Let’s jump right into questions for the panel. Why don’t we start by hearing about your experience in antitrust or complex civil cases and your practices and procedures for presiding over those cases.

JUDGE ALSUP: For 25 years I was a lawyer at Morrison & Foerster and I did mostly complex cases and antitrust starting in the 1970s, and some of you are from that era. I had the honor of going up against Joe Alioto, Senior, the mayor, and so that was my background.

But, I would not call myself an antitrust lawyer, but I do know the general outline of antitrust principles. And, since becoming a judge, I just did my share. So I am not a specialist in this field, but of course we do many, many complex cases and class actions.

MS. MANNING: Judge Beeler?

JUDGE BEELER: I echo what Judge Alsup said. In my old job as the Assistant U.S. Attorney, I was the manager of the office, and some of my responsibility was supervising parts of the criminal division, including being a friend to the Antitrust Division. I saw some of the antitrust division folks here today, so I had that experience as an AUSA. I always liked issues involving competition. And, as Judge Alsup said, antitrust law is part of the portfolio of business that we have with other complex litigation in the Northern District.

JUDGE CHEN: We did not do a lot of antitrust cases at the ACLU, but I have had my share of privacy cases. In fact, I ended up being sort of a privacy expert, particularly under Constitutional law and a lot of complex and UCL cases.

And, that’s one of the great things about being a judge on this court; no matter where you come from, whether you come from a civil practice with antitrust background, or a civil rights background, or a criminal background, you’re going to learn this stuff very quick one way or the other. And, so, we’ve all had our share.

And, as you know, this district seems to be a very popular one for complex class actions. And, part of it is we bring it on ourselves because we’ve taken on a disproportionate share of MDL cases. Many of you are involved in some of the MDL cases we have. I think I saw a statistic the other day, we have either the highest or second highest number of MDL cases, if you look at the statistics over the past several years.

So, I have had large, complex, multi-class action cases. I have one pending now. And we talk a lot about handling class actions. In fact, we just had a retreat a couple weeks ago, and one of the topic we were talking about is how do we manage these cases, how do we handle the lawyers, and how do we handle the lead counsel motions and awarding fees? We’re fortunate to have a wealth of experience and varied legal backgrounds on the court, as well as such a range of interesting cases.

MS. MANNING: Thank you. The discovery process can be lengthy and expensive in complex litigation. How involved or uninvolved are you in discovery motions, and what is your philosophy on how to effectively manage the discovery process?

Judge Beeler, would you like to start?

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JUDGE BEELER: Sure. But, it’s always fun to hear from Judge Alsup on this stuff. We all pay attention to Judge Alsup, right? I’m not kidding. I’m being completely serious.

I understand that the Manual on Complex Litigation2 teaches that you’re supposed to have that active style of case management. I take it to heart. Sometimes. I will say sometimes. One of my colleagues referred to it as the great spigot of work. That was how Judge Gilliam referred to it recently. And, so there’s always this kind of tension between what you can manage and how should you approach it.

But I do think that active involvement is important. And, so I have two things that I think about: 1) regular case management conferences, not just one; and 2) the joint letter brief process. The parties need to get together and talk with each other first and at least try to resolve the dispute or some modification of that process.

Sometimes I do what Judge Alsup does. I invite the lawyers in to get to know each other first for a little bit of time before coming to see me. That’s been helpful in some contexts.

And then, the other thing I think about is deadlines. We have to manage cases with an eye toward deadlines, and so I’m a big believer in setting case deadlines to move things along.

MS. MANNING: We will hear from you next, Judge Alsup.

JUDGE ALSUP: Well, I think discovery is very important. My approach is to keep the discovery disputes and not refer them to a magistrate judge, for a couple reasons. One is to avoid the delay of an appeal from whatever that decision is to me, and second, if the lawyers know that the trial judge is the one who is going to see how they’re behaving, then they don’t misbehave as much.

JUDGE BEELER: I think that is totally true. Because what happens is you’ll see I have more discovery disputes in referral cases than I do in my own cases and that’s without regard to the complexity of the case.

JUDGE ALSUP: So, what I will do is this. Let’s say you have a discovery dispute and you write me a three-page letter, or less, and I get that on Monday. I don’t wait for an opposition. I send out an order that day saying, "On Thursday we will have a discovery conference, and you will come in at 8:00 o’clock and meet with your opponent in the jury room until 11:00 o’clock."

JUDGE CHEN: And turn off the air while they’re in there.

MS. MANNING: Do you provide snacks?

JUDGE ALSUP: The jury gets snacks. The lawyers get no snacks.

And, they sit there and try to work it out. The odds are 60 percent that the problem will be solved before 11:00 o’clock. Really. They come out and they say, "We’ve solved the problem. Can we go home?" And, I say, "Yes.".

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But, in 40 percent of the cases, they still have the problem. So they come out and we have a regular meet-and-greet on the record in the courtroom. I then do rough justice.

Now, you would think, well, how can the judge do rough justice in a case like that because it’s so complicated? Listen, for 25 years I did the same kind of cases, and then I’ve seen them for almost 20 years as a judge. I can tell what the problem is just when the lawyers come in. Almost without hearing anything, I know what the problem is. So, I can cut right through the BS and get down to it. And, I apply a little practical principles of proportionality and trying to find ways to use random samples.

Here’s one of my tricks. If you use those instructions in your document request combined with the definitions (all those capitalized words), you are automatically making it unenforceable because it’s so broad and oppressive. I will say, "Look how oppressive this is." The party seeking the discovery will always try and fix it up by writing a letter saying to the effect, "All we really want is X, Y, Z," but it turns out that in their actual document request it was much more. Anyway, the point is, I hold my own hearing and I give a ruling at that hearing.

Now, the one thing that I handle differently is privilege. If there’s an issue of privilege, then I require a sworn record and a full hearing because I think privilege should not be cut through quick and dirty like a lot of other things. I do that on a more formal record, but I might shorten the time for that kind of motion.

MS. MANNING: Judge Chen, what is your policy on oral argument? Do you typically hold oral argument on motions? If so, what is your style? Do you start with questions or do you allow counsel to proceed with a prepared argument?

JUDGE CHEN: Unlike a lot of districts, I think most of us hold oral argument, at least I do, and I hold the oral argument in probably 95 percent of the cases, even when I think it seems like it might be clear. I have found that often I will learn something in oral argument that I didn’t pick up, either because it wasn’t in the briefs, or wasn’t highlighted, or it’s buried in some footnote or some passage that I didn’t catch. Or, as the argument evolves and you think about different strains of argument and counterargument, you know, there’s kind of an iteration that wasn’t thought through.

So, I’ve always found oral arguments to be helpful. It’s also fun. I mean, doing an oral argument, it’s just kind of a fun exercise. But, I think it’s actually very useful.

Ideally I would like to get out a tentative ruling in advance or advance questions. Some of my better prepared colleagues do that. I just find myself not able to do that all of the time, but I do come out almost always with some initial impressions and my tentative views, and I will try to zero in on the critical questions.

MS. MANNING: Judge Beeler?

JUDGE BEELER: I think oral argument is really important. I always have them on dispositive motions. I aspire to have them on any consequential motion. I find oral argument to be extremely helpful. When I clerked in the Ninth Circuit, Judge Trott told me how important it was. I remember having that conversation with him as a clerk. It really stuck with me.

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MS. MANNING: And, how about you, Judge Alsup?

JUDGE ALSUP: I think oral argument is very important. You know, many districts don’t do it at all. Up in the Western District of Seattle you don’t get any oral argument. The first time you see the trial judge is on the day of trial; they don’t even do the pre-trial conferences.

But, we are very engaged in our district with the lawyers. I would say in more than three-fourths of the motions, I like to decide with oral argument. Some people learn better visually and in reading, but I’m one of the people who learn better listening, especially when I get to ask questions.

I will come out usually with my tentative, although I don’t hand out a written tentative. Rather I will say, "Listen, here’s the way I feel about this, and I want to give you a chance to talk me out of it." So I’ll say, "I think we should do X, Y, and Z, and that’s because of A, B, and C. Now, what am I missing in this picture?" Then you get a chance to say, "Wait, Judge, you forgot all that they just told you was completely untrue."

I also like to do it issue by issue. Instead of going through five or six issues and then letting the other side going through five, I like to say, "Okay, let’s hear from each side on Issue 1," and we go back and forth. Then we’ll go to Issue 2 and we’ll go back and forth.

So, I find oral arguments extremely valuable. I will say as a general rule, about one third of the time it changes my mind in some substantial way. Maybe not that I’ll completely reverse my tentative, but I will modify what I thought in an at least one third of the time.

MS. MANNING: Thank you, Judge Alsup.

Most complex cases ultimately end up settling before trial. What is your policy on when the parties may discuss settlement negotiations in a class action?

Judge Alsup, I understand you have a standing order that prohibits parties from discussing a settlement prior to the Court’s order on class certification. Can you talk about that?

JUDGE ALSUP: Now, that’s in a proposed class action suit. And, I know that I’m all alone out there. I feel this way. It is okay to discount the merits of a case when the absent class members are concerned. It’s okay if you’re asking for $1,000 and you discount it down to $400 based upon the merits, I think that’s perfectly normal.

But, what should not be done is you discount it further from the $400 down to $150 or $200 based on the possibility that it’s not suitable for class treatment in the first place. The absent class members should not bear that burden.

I think you should figure out first whether there is a class. Are certain issues suitable for class treatment? And then once we define what those are, the parties can go talk settlement. But, not before. That’s the way I feel about it.

Now, there is an exception. Rule 23 calls for appointment of interim counsel as a possibility, and I have done that in certain cases where I think the defendant is going bankrupt or there is some urgency. I will say to the parties, "You have my permission to go try to work out a settlement before class certification is decided." I will consider that as a possibility in certain circumstances.

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I recognize that I’m the only judge who does this, but there’s a professor who’s written a good article about exactly what I said. You should not allow the absent class members’ claims to be further discounted by the possibility that you’re not even going to get a class. And then, for example, you might not have an adequate representative or a certain issue might not be amenable to class wide proof. And, so the absent class member is better off still having their claim.

MS. MANNING: Thank you.

Judge Chen, do you have any limitations on when parties in a proposed class action can start talking about settlement?

JUDGE CHEN: I don’t. I guess we have different views on this particular question. In my view, the risk of non-certification or sustaining of the certification is one of the litigation risks, just like the merits is. And in particular, given the current situation where so many issues related to class certification are in a state of flux and that are being changed in the Ninth Circuit—for example, the issue of predominance in multi-state class cases, and the overlay of the whether claims must be arbitrated—that affect the class certification inquiry.

It does seem to me that sometimes absent class might be better off trying to settle rather than throwing the dice and getting nothing out of the case.

But, I am concerned, for the same reason articulated by Judge Alsup, that if you settle a class case too cheap and the case is so much on the edge that at some point it’s questionable. And, perhaps that’s why you still have to satisfy the requirements of Rule 23 even in a proposed settlement of a class case before certification. I think that’s the main protection.

Of course there’s a different presumption applied before you get class certified in terms of the reasonableness of the settlement. And you’re in a much better position if you actually certified the class. So, there is already some recognition of that in the case law. But, I don’t have a blanket rule that prohibits discussion beforehand.

MS. MANNING: And what about you, Judge Beeler?

JUDGE BEELER: I don’t either. I will just say this, though: There are certain utilities that attach to a case where you have certified the class.

And, then the whole settlement analysis, just practically speaking, is just much easier to understand in the context of a case that has been litigated to at least class certification and sometimes beyond.

MS. MANNING: Let’s switch gears and talk a little bit about the cases that don’t settle and end up going to trial. How do you handle evidentiary issues during trial? What do you consider effective and ineffective in arguing evidentiary issues, and when do you allow briefing on those issues?

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Judge Alsup, let’s start with you.

JUDGE ALSUP: In the vast majority, you have to rule right there. There’s a jury over there, and the lawyer says, "Objection, hearsay." Half of the time, I know it’s not hearsay and I say, "Overruled, please answer." And, that takes about five seconds.

But, there are times when I am not sure, so you have to do what Judge Lowell Jensen was a genius at, which is, you know, we’re running a risk management thing ourselves as the trial judge because at the end of the trial there will be perhaps 100 rulings. Now, are we going to get it right 100 times? No. We get it right maybe 90 times or 95, and so five issues may go up on appeal.

For the ones that I’m not as certain about, I may buy some time. I’ll tell the lawyer, "Move on to something else, we’ll talk about this at the break." I may even let counsel brief it overnight. It depends on how important the issue is, and how much the lawyer thinks he or she needs the evidence in, so it’s a give-and-take thing.

I usually am able to work enough time out of the trial day or the hearings in order to give myself adequate briefing and time to consider the ramifications of it. But, nevertheless, I would say the vast majority of rulings are made very quickly, otherwise, trials would grind to a halt.

I require the lawyers to be in court at 7:30 in the morning in order to work out the evidentiary kinks of the day. The jury arrives at 7:45, and we always start by 8:00 o’clock. So, we have about 30 minutes to sort out the day’s problems.

There are very few days where we need more than 30 minutes, and then we have a plan for the day, we go and bring the jury. Very few issues will require sidebars. There will be a few, but not very many.

The process above does not apply to Daubert motions, now, that’s a separate question. I’m talking about the normal trial issues like hearsay or other objections or typical trial issues that would come up.

MS. MANNING: Because you opened the door, how do you deal with Daubert motions?

JUDGE ALSUP: I think there is so much abuse of experts and there is so much abuse of Daubert motions.

MS. MANNING: Do you mean overfilling of Daubert motions?

JUDGE ALSUP: Overfiling, attacking everything. One side says there’s $3 billion in damages; the other side says it’s zero. Really, that happens a lot. Then both sides want to attack each other with a Daubert motion. And, okay, we go through that process. I sometimes do it before the pre-trial conference, sometimes at the pre-trial conference, and sometimes these things even come up in the middle of the trial.

I want you to know I’m skeptical of experts and I’m skeptical of Daubert motions. I’ve just seen too much, I guess.

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MS. MANNING: Judge Chen, what do you think about Daubert motions, and how and when do you resolve them?

JUDGE CHEN: I share Judge Alsup’s view. I think they’re overfiled to a certain extent. And, I can understand why, tactically, strategically, but . . .

Now we see Daubert motions in connection with motions to certify a class or summary judgment motions. So we’re seeing them at almost every stage. And, we just have to deal with it.

I don’t think we can limit it.

The Court has made it clear we have that gatekeeping function to perform, and of course you all have your advocacy role. But, just be aware that, you know, it wears us down to a certain extent.

JUDGE ALSUP: May I interrupt? You said the "gatekeeper" thing. I threw out an expert completely, and I said, "Look, it’s my gatekeeper duty." And, he said, "Well, you’re supposed to be a gatekeeper, Judge, but not an armed guard." That was a good one. That guy got an A. That was a good line.

MS. MANNING: Did he have to go to trial without an expert at that point?

JUDGE ALSUP: Yeah. If I throw your expert out, you don’t get a substitute.

JUDGE BEELER: So what happened in the trial, what was the outcome?

JUDGE ALSUP: I got reversed on appeal, but on a different ground.

JUDGE BEELER: One of the weird things about experts, though, is the balance is really affected when an expert is lost. Experts are a means for a jury to hang its verdict on something, and that’s a pretty skeptical view, but I think it true.

I know what it was like to try cases, and as a result, I don’t have my pre-trial conferences well in advance of the trial. Sometimes I’ll manage a couple of pre-trial conferences, but I feel very strongly about wasting the jury’s time. And, most jurors come in and you see that in jury selection and how people think they don’t want to be there, but then ultimately jury trials are an amazing experience for everybody. It’s a great experience for everyone; we are all improved by it.

And, as a lawyer—I always said this when I taught trial advocacy—there’s no excuse for not being able to get in evidence, either it’s admissible or it’s not. And, I don’t like the jury’s time being wasted.

So, Judge Spero doesn’t do this, and he always says everything will sort itself out, so don’t get overly involved. And, I suppose I get overly involved in admissibility of evidence a little bit early on. I don’t spend oodles of time on it, but if I sense that a case is unorganized, I will make the lawyers come in and spend a day and work it out.

I don’t like to see challenges for authenticity that are silly, I don’t want to see custodians called unnecessarily, and I don’t want the jury’s time to be wasted.

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A documents case should go in smoothly and easily, and if it’s all cluttery, you’re actually distracting from your narrative. So, not only do I think its bad strategy, I think it’s bad for the jury. So, I take an active role in managing that because I know from my own experience that it’s easy to try a big case that’s document intensive, and it doesn’t have to be a clutter of objections.

JUDGE CHEN: To that end, I require the parties to file a table of all exhibits they’re going to propose to submit, and then the other side to file their objections and response so I have a little mini table of everything before trial. I do this in the pre-trial conference. I want to see a preview of all the objections.

And, sometimes there are so many, there’s hundreds, I’ll do kind of a bellwether thing that says, well, let’s select out the groupings, see what are the critical issues here, whether it’s a hearsay problem or some other issue.

JUDGE BEELER: Or saying something is a business record when it’s not a business record.

JUDGE CHEN: So, I might get those out of the way. I don’t want to see those for the first time in front of the jury and have to argue or take a time-out or something. So, I try as best I can to get as many of the evidentiary issues talked about beforehand and then use that as guidance in advance. I said, "Look, you’ve got my ruling now on these 20 or 30, you should work out the rest." And, if you’re not, you see what direction I’m going to go.

JUDGE ALSUP: Let me add one thing. I think the judges on our court are pretty faithful to the rules of evidence.

And, I think there are lawyers, probably some in this room, who think, well, once I get to trial, if it was in the file, in my client’s file, even if it was the "Chron," I get to put that in evidence because it’s a "business record" because it’s in their business files. No. We are pretty good about insisting on that the rules of evidence be honored. I think that’s our view.

MS. MANNING: In antitrust litigation, the cases typically involve testimony from economists regarding collusion and damages. Do you have any tips for how lawyers can present complex economic evidence to juries?

Judge Chen?

JUDGE CHEN: Well, my comment is not necessarily particular to economic damages. We have a lot of high tech cases, and there’s a lot of expertise in patent cases and other things. Part of it is the lingo and the ability of the expert to use simple vocabulary and to analogize if they can.

A good expert can make you feel like you’re in a classroom. I’ve seen complex science, like anticancer drug therapy, explained in a way that was quite simple. I mean, it seems simple at the time. I don’t know if I really understood it, but I felt like I did at the time, and I think the jury did as well.

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And, I have seen other presentations, like in tutorials, where the experts are presenting but they’re using such complex concepts and lingo that was totally ineffective. I got nothing out of it. And, I think that applies to all experts.

MS. MANNING: Judge Beeler?

JUDGE BEELER: I think that use of accessible language, describing things by analogy, and using plain English are all really important observations with experts.

Once I saw an antitrust trial just as a spectator, and the two experts were so alike to be as virtually indistinguishable. Age, length of hair, superior academic credentials—you really could not tell them apart. And, of course, what did the jury do? They disregarded both of them.

I have noticed one thing that jurors like: boots-on-the-ground experience, like actually going to visit the site in question. And, so I think that that’s an observation I learned from my own experience about experts.

MS. MANNING: Do you have any tips, Judge Alsup?

JUDGE ALSUP: Use something that I can understand. I think animations and diagrams are great. Something that simplifies the problem without oversimplifying it. It still retains the essence of the problem and explains the essence of the problem. So, that’s one way to explain technical concepts and issues to juries.

The most important thing about to say about a damages expert is that candor is important and to be realistic. I’ll give you one example. In a patent case a few years ago, the plaintiff wanted $17 million, and that was a reasonable number. In fact, I was surprised that they didn’t ask for more. They probably could have gone to $25 million and still been reasonable. They asked for $17.1 million, and that’s exactly the number that the jury came back with because every step along the way, I thought the expert was just rock solid. So, the plaintiff won down the line on everything and down the line on all the damages. And, it was just a remarkably well tried case, in my view, without any overreaching and without any abuse by the expert.

So, I think candor is important. I don’t see that very often. I often see $3 billion on one end and zero on the other side. That is the much more common thing you see these days, which is sad, really.

Can I give you one other thought?

MS. MANNING: Absolutely.

JUDGE ALSUP: I’ve only done it once, but I’m of the view that we should appoint under Rule 706—and make the parties pay for it—a court-appointed expert who will come in there and tell the jury like it is.

JUDGE BEELER: Assuming you can tell it like it is.

JUDGE ALSUP: Rule 706 tells you we can do that and we can make the parties pay, or apportion it any way that we feel is just.

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MS. MANNING: Have you ever done that?

JUDGE ALSUP: One time I have done that. And that has not yet been reversed, but it’s still in play.

JUDGE BEELER: Judge Wilken did it one time, too, but I’m not aware of anybody else doing that.

JUDGE ALSUP: She did. And, she and I are the only ones. Well, I got the idea from her, actually. She did it on a technical issue, and I’m doing it on a damages issue. Damages issue are now so complicated that it’s plausible that you could use a 706 expert there. That, I commend. You know, the lawyers are not going to want that, but my colleagues, I commend that as something that might bring some sanity back to the use of experts.

JUDGE BEELER: I wonder if Judge Chen has something to say about that.

JUDGE CHEN: Well, I’ll observe for a while and see how that plays out. I mean, obviously the danger, on the other hand, is the perception that we’re delegating too much, we’re putting too much weight on somebody and we’re sort of losing the role of a judge. But, you know, that’s not a crazy thought. There are intellectual property courts—I went to one in Taiwan—where they have 12 expert area examiners sitting with the judge and helping him or her understand the issues. And, yet the judge still makes the ultimate decision. And, in some ways you think, gee, that kind of makes some sense.

JUDGE BEELER: Thailand does it too. It’s interesting though, because it’s an adversarial process—that’s our system—which I didn’t fully appreciate earlier on in my legal career.

I remember seeing it towards the end of my last job where I was trying increasingly more sophisticated cases. And, I really had the time, because they move slower, to see how jurors looked at the decision maker. I had a case in front of Judge Patel, and people looked at her, you know, like she’s Judge Patel! She really was an amazing judge, and it was a pleasure to try a case in front of her. But, I saw how the jury looked at her and, I hadn’t noticed it earlier in my career.

JUDGE ALSUP: Well, the rule is designed to assist the jury, the finder of fact. It has to be a case that is sufficiently complex that it would be of assistance to the jury to have someone explain what the two competing sides are fighting over and what they think.

And that appointed expert is not directed by me in any way. They make their own independent professional decision.

JUDGE BEELER: Right. I just don’t know if it feels like it has the imprimatur of court approval somehow and then in a way that kind of puts your thumb down in a way that’s inappropriate for the adversarial process.

JUDGE ALSUP: Yes, but what that will do is it will cause the bought-and-paid-for experts to move toward the mean as opposed to extremes. Because they don’t want to be too far off with what the court-appointed expert conclude. Nevertheless, I’ve only done it once, and I recognize these problems and I believe in the adversarial system, but this problem with experts is out of hand, in my view.

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JUDGE BEELER: I agree with that, too. It’s just hard—you look sometimes at the experts and you just know they’re hired.

JUDGE ALSUP: Bought and paid for.

JUDGE BEELER: Bought and paid for. Hired hacks is what I was going to say. JUDGE CHEN: Sort of like the lawyers. Just kidding.

JUDGE ALSUP: Well, it’s okay for the lawyers because everyone knows they are the advocates.

JUDGE BEELER: And, the jury knows it too.

JUDGE ALSUP: But, the experts pretend that they are independent and that they’re giving a professional opinion.

MS. MANNING: Well, there certainly are a lot of strong opinions on the topic of experts. Let’s try this one.

The antitrust bar tends to be, shall we say, quite mature and mostly male. In large MDL cases, it can be hard for younger attorneys, women, and minorities to get interesting work. What, if anything, do you do to encourage the litigation team to have a diverse group of lawyers?

Judge Chen, will you kick off this discussion?

JUDGE CHEN: I was going to defer to Judge Alsup. He’s the pioneer.

JUDGE BEELER: He’s the pioneer.

MS. MANNING: Seems everyone’s deferring to you, Judge Alsup.

JUDGE ALSUP: I haven’t done an MDL in about 10 years or so . . .

MS. MANNING: The discussion does not have to be specific to MDL cases, it can relate to any complex case.

JUDGE ALSUP: I definitely encourage young lawyers, and I say that up front. I have standing rules, but I don’t order it.

When it comes to selecting lead counsel in a case where there are multiple possible lawyers, I don’t like this stratified set of committees. I like to have one firm involved, although sometimes I will allow two, maybe even three, it depends. But, that’s to save money for the class. So that’s a different issue, it has really nothing to do with this immediate point.

But, on the initial point, I am very concerned that we are not training the next generation of practitioners and that the big firms especially are not doing that, and that we need to tell the big firms, "Please send out young people to argue your motions." I am very pleased with the results from that. And, so I think if we encourage it, it will happen. I guess that’s the best I can answer on that.

[Page 120]

MS. MANNING: Judge Chen?

JUDGE CHEN: Our court just recently had a retreat—and I can’t remember now whether we incorporated it into a formal standing order or we have a model standing order that all of our colleagues are adopting—that makes it express that we encourage firms to allow younger and underrepresented attorneys to appear and argue motions. At the very least—which I think we all agree—is to allow, for instance, multiple attorneys to argue. And, it gives a chance to give a piece of an argument to a younger attorney until they get roped in by their partner.

So, I think we are all of that mind because we’re all concerned about the problem of lack of diversity that we are seeing in some circles. When it comes to steering committees, I agree with what Judge Alsup said about avoiding large steering committees unless it’s absolutely necessary. But, where it is necessary, I made it clear that one of the criteria when you’re testing for leadership positions is how diverse your team is and what you intend to do in terms of giving opportunities to others. I think that’s worked fairly well.

In the MDL I have, I’ve appointed a steering committee that’s about 40 percent women and about 20—25 percent people of color. And, so I think that’s necessary; otherwise the same people get the same experience, and pretty soon, if you’re not willing to go outside that same box, you’re going to end up calling the same people all over again. So, I try to break that cycle.

JUDGE BEELER: The one thing I’ll add to the conversation is that you will get an argument that may be more robust if you have newer lawyers arguing it, and the judges will actually listen—you get a more receptive audience and you will have more argument than you might otherwise get.

So, not only is it the decent thing to do, not only is it the thing to do to grow the next generation of lawyer, but it’s also the strategically correct thing to do. Which often is the case in life, that the right thing to do is also a good strategy.

JUDGE CHEN: And, it’s really irritating to have a senior person up there and arguing, and then not knowing all the facts and having to turn to the junior lawyer who you know did all the work.

JUDGE ALSUP: Well, that is very true, but the young lawyers have not yet learned guile. Is that the right word?

JUDGE BEELER: Yes, the elegant deception of lawyering.

JUDGE ALSUP: So the senior lawyer gets up there and I ask, "Has the statute of limitations run?" And they say, "Judge, you don’t have to reach that issue, here is the thing you need to consider." Or they say, "Judge, before we get to that, did you know they haven’t produced those documents yet." And then I get mad because they did not answer the question.

But, if I ask that to a young lawyer, they say, "No, the statute of limitations has not run because of A and B." I hear this very clear. So, they answer the question. I like that.

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JUDGE BEELER: I really do call it the elegant deception of lawyering. It’s not deception if you’re not saying something incorrect, but it’s an avoidance technique.

MS. MANNING: Judge Beeler, I very much enjoyed reading your law review article titled "The Company I Keep." And, in that article you write, "Every hearing is an opportunity to mediate cases." Can you tell us what you mean by that?

JUDGE BEELER: Sure. The idea is lifted from someone else. [Former] Northern District of California Judge Jeremy Fogel3 said it. He’s a judge who really believes in mediation and in active case management, and sort of lived the idea of the Manual for Complex Litigation.

So, it’s a little joke I tell to myself. I have all these little things I say, and one of them is, "the truth: it’s important maybe 60 percent of the time." And, then sometimes I say, "The law, that’s important maybe 60 percent of the time."

And, for a lot of problems, there’s the business context for decision making. And, I think that if you look at cases and try to see them for what’s going on in the real world, the litigated dispute is just rules being applied to a dispute, and sometimes the dispute is amenable to a different resolution altogether.

In my very first patent case, so it was years ago, there was just a slew of lawyers and clients. And, I think I asked the question, "Aren’t you tired of this," and one of the clients was nodding. Because it just seemed that litigation was a bad way of solving that problem. So I just saw that early, partly because I do settlement conference as part of my practice, so I get to see that from the perspective of actual helping people resolve their disputes.

And, so I think you see in the case management process that most cases settle. 97 percent of cases don’t go to trial, 80 percent of cases in our district settle without a dispositive motion. I think that is a good indication that if we can manage things toward resolution, that’s good for the parties. And, I try never to lose sight of the human context of what is actually going on. I have had a couple of different situations where cases have resolved because I asked some of those questions at case management.

MS. MANNING: I think I’ll ask one more question and then turn it over to the audience.

Tell us a little bit about jury selection in your courtroom. Do you use questionnaires? What input do you permit the attorneys to have in questionnaires, and who conducts the voir dire?

JUDGE ALSUP: I conduct the initial voir dire, and then I let the lawyers ask questions because I am sure I miss things and they can follow up. Questionnaires ahead of time are rare, but I will, in some cases, be talked into a short questionnaire. So, I won’t say no or never, but I would say in the general run of cases, we don’t have questionnaires. I do the initial voir dire, then the lawyers, and then we pick the jury.

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MS. MANNING: Judge Chen?

JUDGE CHEN: You know, again, we just had a retreat, and we talked about this issue of questionnaires. I think most of us feel that you actually can get a lot of information from questionnaires that you don’t get in the courtroom. You would be surprised how many honest answers you get or door-opening sort of comments. In a case involving some sensitivities or some perplexities, I am favorably disposed to questionnaires, with the proviso that we can’t do it in every case.

We have jury utilization statistics and we have limits and budgets. And, the problem with questionnaires is you have to bring people in, at least that’s the way we’re doing it, and they come in for a whole day and then you’ve got to then collate and collect the questionnaires and you come in another day. So, you’ve burned a whole day of jury time in that process.

But, in a lengthier trial, a complex trial, I think it’s worth it—it yields dividends. And, particularly if it’s a sensitive case that involves issues where there’s a lot of pre-trial publicity or potential implicit bias, in my experience you tend to get some more honest answers in questionnaires that you can then follow up on in voir dire in court.

MS. MANNING: Judge Beeler?

JUDGE BEELER: I use a one-page questionnaire in every case, which is just the biographical information. And, it doesn’t hurt jury selection.

When the jury is reading or watching the videos, the questionnaires come down and they are sorted in the order of call because it makes it easier. The lawyers read them, we bring in the jury, and then the jury is picked all before noon. It works out fine.

I think the jury selection goes faster because the lawyers do voir dire. I mean, I do the initial, and then let the lawyers do the voir dire, and I think it works really well.

I like the questionnaire in more complex cases for the reasons that Judge Chen describes. Because of jury utilization and partly because I think you mostly don’t need it if you’re doing voir dire yourself. And, in certain kinds of cases, it’s really helpful. But, the shorter, the better, just for a whole bunch of mechanical reasons.

I do think if it is going to be a more press-worthy or sensitive case, I have the jury come in on a Friday to fill out the questionnaires and the lawyers get the weekend to review them. It doesn’t work if they get them Monday night; it’s just too hiccupy.

And, then also I have this theory that if a case can be tried in a week, jurors get really upset if they have to come in the following Monday. But, if they come in on a Friday and then finish the following week, that they are a lot happier.

So, that’s my philosophy about questionnaires and a little bit of my philosophy of voir dire.

MS. MANNING: Thank you. So how about questions from the audience? I think we have time for a few. We have one over here. Mr. O’Rourke.

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QUESTION BY KENNETH O’ROURKE: Good evening. Thank you.

I have a question about appeals from your rulings. And, specifically when there’s an appeal from an important ruling that you have issued, do you follow it in the appellate court, look at the briefings and so forth, or is that just in the rearview mirror for 18 months or twelve months until the Ninth Circuit rules?

JUDGE ALSUP: I can think of about two cases in almost 20 years where I looked at the briefs on appeal. But, it’s not because I’m not interested, it’s just that we’ve got other cases. So, yes, occasionally. I would say rare, rarely in my case do I look at the briefs. Now, when the opinion comes in, yes, of course I look at that.

JUDGE CHEN: I think it’s too excruciating. I mean, I have some colleagues who invariably will listen to every Ninth Circuit argument. They tune in and they listen. It’s like you’re sitting there and somebody else is arguing your case. I can’t stand it. I have no control, I just wipe my brow and get to it when they come back.

JUDGE BEELER: Who has the time? Although it’s an interesting thing, it hadn’t even occurred to me that people might be slamming me in the briefs. Isn’t that a terrible lack of self-reflection on my part?

Of course, I read the orders with interest. In one case I had, which was a really interesting environmental case that had a complex regulatory scheme, I took a lot of time with the order, and I really enjoyed the whole process of working on it. And, I was super curious because I was convinced I was right. So, in that instance, I did watch the Ninth Circuit argument, because you can watch it on the web page.

That’s the only time I’ve done anything other than just wait for the order to come out. But, I was very interested in the topic, and I sort of poured my soul into that order. It was fun to understand. And, so, I did listen to the argument in that instance. But, I did it out of complete interest.

MS. MANNING: We have time for one more question. Ms. Chen.

QUESTIONS BY JIAMIE CHEN: Hi, my name is Jiamie Chen, from the Joseph Saveri Law Firm.

And, my question is sort of a follow-up question to a question Jill had asked you a little bit earlier. If you’re at a leadership hearing and you see a variety of attorneys in the room. And, let’s say that some attorneys are people of color, who are women, who maybe have been practicing for less than 20 years, and then you see some other attorneys who are extremely well respected and experienced and have, let’s say, a dozen leadership appointments under their belt, and that’s the one you know that has a proven track record. Are you open to giving an opportunity to someone like the former attorney, and if so, what can someone like the former attorney do or say to help you be more comfortable giving someone like that a chance?

JUDGE CHEN: Well, hopefully if it’s a case where you can have a steering committee with, perhaps, five or six or seven, there is room to make the appointment. And, I think that’s how inexperienced or less experienced attorneys can kind of get a foothold. You’ve got to start somewhere, and if you can start and get yourself on a steering committee and then that builds on itself. And, that’s how everybody starts, and that’s why I think it is important.

[Page 124]

The harder one, if there’s only room for one firm, one attorney. If it’s a class action, we have a fiduciary duty to the class. But, if it’s just one firm or a small package, if there is a way to include others, I definitely try because I do have that in mind. But, I also understand that the first and foremost duty is to make sure that the fiduciary duty to the class is fulfilled.

So, if you’re vying for that position, I would put as much in the resume about how much responsibility you’ve had in the cases you’ve tried, how much motion work or discovery you’ve conducted, and how much responsibility you have gotten. So you make sure you highlight all the skills that are necessary so at least somebody feels like, well, that person can run with the ball if they’re given the ball.

JUDGE ALSUP: In cases where I can pick the plaintiff and the law firm, I do ask for proposals. But, I want to see who within each firm the law firm is going to put on their team and what their experience is. So, that would be the moment where that fact comes in to play.

But, what Judge Chen says is also true, which is that there is a fiduciary duty to the absent class members to make sure that the overall mix that we are putting in charge of the class can do an excellent job for the class. But, all those things should be considered and are considered. I guess that’s the best I can say.

MS. MANNING: All right. Final word. Judge Beeler.

JUDGE BEELER: Well, I was just going to say one thing. It’s always hard when you’re not starting your career, but even mid-career, to have your audience know you well enough that they can trust you.

And, so I always thought from my own perspective, you know, how do you do that? How do you go to court and have someone say, "I want to pick you, I hear you, I trust you." You get that from engaging with the court on a regular basis. And, you can do that in your own cases, for example, by being on the court’s pro bono panel and getting trial experience. You can get it by participating in the Courts, like the lawyer representatives or federal bar associations.

There are ways of getting to know your judges. I did it not because I was being particularly strategic about my own career, but because my own experience clerking was so meaningful to me. I always joke around that I was sort of like a judge groupie. You guys know that; right?

I practiced in the Northern District for 15 years, and I genuinely liked the Court, and I found reasons to try to engage with the Court. And, ultimately that really helped me, especially when I was doing more complex cases, to be seen and heard and have what I’ve asked for followed. So, I do think there’s a way you can kind of leverage your resume by engaging with the court in that sort of way.

[Page 125]

MS. MANNING: Thank you for that sage advice. Please join me in thanking our very distinguished panel. It was wonderful to have you here today, and I think we all will be better advocates before you having heard your words of advice and wisdom. Thank you.


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1. Jill Manning is a partner at Steyer Lowenthal Boodrookas Alvarez & Smith LLP, in San Francisco, California, and the immediate past Chair of the Antitrust, UCL and Privacy Section of the California Lawyers Association.

2. Manual for Complex Litigation, Fourth (Federal Judicial Center, 2004).

3. Judge Fogel currently serves as Executive Director of the Berkeley Judicial Institute, University of California, Berkeley, School of Law.

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