MANAGING ANTITRUST AND COMPLEX BUSINESS TRIALS—A VIEW FROM THE BENCH

By Elizabeth Tran Castillo¹

In 2019, the Golden State Institute continued the tradition of hosting a panel of judges with backgrounds and experiences of managing antitrust and complex business litigation and trials. Three distinguished Northern District of California jurists—Judge Vince Chhabria, Judge Haywood Gilliam, and Magistrate Judge Jacqueline Corley— offered their insights and perspectives on these issues in a panel discussion moderated by Elizabeth Castillo.

Panelists

• Judge Haywood S. Gilliam, Jr. serves as a United States District Judge for the Northern District of California. Judge Gilliam received his commission in December 2014. He graduated magna cum laude from Yale College in 1991 and received his J.D. from Stanford Law School in 1994. After law school, Judge Gilliam clerked for the Honorable Thelton E. Henderson, then the ChiefJudge for the Northern District of California. Judge Gilliam was in private practice from 1995 to 1998 and worked at the U.S. Attorney’s San Francisco Office from 1999 to 2006, ultimately serving as Chief of the Securities Fraud Section. Before his appointment, Judge Gilliam’s law practice focused on white collar criminal and regulatory matters and internal investigations.
• Judge Vince Chhabria serves as a United States District Judge for the Northern District of California. Judge Chhabria was nominated by Barack Obama on July 25, 2013 and confirmed by the Senate on March 5, 2014. Before taking the bench, he was chief of appellate litigation for the San Francisco City Attorney’s Office, as well as a deputy on the Government Litigation Team for that office. Prior to joining the San Francisco City Attorney’s Office, he worked in the San Francisco office of Covington & Burling, where he focused primarily on criminal defense litigation. He served as a law clerk to Supreme Court Justice Stephen Breyer during the 2001-2002 term. Before that, he clerked for James R. Browning on the Ninth Circuit and Charles Breyer on the Northern District of California.
• Magistrate Judge Jacqueline Scott Corley has been on the federal bench since 2011 and has presided over nearly every type of civil action at all stages of the proceedings, from motions to dismiss through jury trial. She has also served as a settlement judge in hundreds of cases. She currently serves as the Northern District’s Alternative Dispute Resolution Magistrate Judge, in charge of coordinating the alternative dispute resolution program with the Court. Just prior to taking the bench, Judge Corley was a partner at Kerr & Wagstaffe, LLP. From 1998 through 2009 Judge Corley served as a career law clerk to the Honorable Charles R. Breyer. She also served on the Northern District of California Alternative Dispute Resolution mediation and early neutral evaluation panels from 2006 through her appointment. Judge Corley received her undergraduate degree from U.C. Berkeley, and her J.D. from Harvard Law School, magna cum laude, where she was an editor and Articles Chair of the Harvard Law Review.

[Page 99]

I. MANAGING COMPLEX CASES

MS. CASTILLO: Good afternoon, everyone. My name is Elizabeth Castillo, and I have the honor of moderating this distinguished panel of federal judges from the Northern District of California, all of whom have a wealth of wisdom regarding complex case management and best trial practices.

Welcome, judges, and thank you for being with us here today. Let’s jump right into managing complex cases. Let’s first begin with your experience in complex cases and your practices and procedures for presiding over them. We’ll start with Judge Chhabria.

JUDGE CHHABRIA: I don’t know if I can describe one road map for managing complex cases. I mean, they are complex, and they are usually unique, right? So my approach is that I try not to have a set approach. I try to think about every case based on the facts and law and the nature of the case what is the best way to manage and schedule the case in a way that’s going to be least costly for the parties and move the case along as quickly as possible, but I honestly have some kind of default approaches to class actions that I assume we’ll talk about later, but for the most part, I don’t have one set approach. I really try to go into each case with an open mind as to how to manage it and schedule things.

JUDGE CORLEY: So my experience as a magistrate judge is going to be a bit different where I have some complex cases on consent. Just having to get consent from everyone makes it less likely, so I deal with the more for discovery and for settlement. And I guess I would say my philosophy with complex cases is we tend to have pretty experienced counsel. So my philosophy is to sort of go with counsel, really rely on counsel, give them the time and ability to come up with proposals for me for discovery, encourage them. Maybe require them to come up with a really thorough discovery plan, but then not mess with it, right? Say, okay, you agreed to it, accept it.

The same thing with settlement is really spend a lot of time on the phone figuring out what is our best way to proceed, and then what I really think with complex cases is often what the best thing a judge can do is give parties deadlines. And so I’m happy to do that, and as much as possible, where there’s a deadline for the discovery, a deadline to come up with a stipulation, a deadline to do this. And I’ve found with complex cases that’s what actually keeps them moving the most.

JUDGE GILLIAM: I do in each case that comes in as a new civil case have, as Judge Chhabria was saying, some defaults that are the standards, especially in terms of the schedule. So generally, if it’s a relatively straightforward case, I often look to have a schedule that could have the case resolved within about a year. Sometimes for more complex cases, it could take 18 months or longer, but like Judge Chhabria, that is a starting point, and my practice in the complex cases especially is that I do rely very heavily on the parties’ counsel to meet and confer, really think about the case before that first case management conference. And come up with a set of proposals that we then can discuss for moving the case along in a way that’s timely and efficient.

[Page 100]

One of the immediate bad signs in a case management conference statement is when I get two dueling schedules that are dramatically different because, obviously, the parties know the case much better than I do at that point. You’re deeply immersed in it, and I urge counsel to really think together about what makes sense. And then we talk about it. I don’t impose the default unthinkingly. If there is something about the particular case that counsel different approach, I’m going to consider that. Sometimes I experiment in terms sequencing, if the parties are making a joint proposal and they present well-thought thorough reasons for trying it, I will consider that. But really, I think the fundamental expectation coming in is that I do ask a lot of counsel in terms of really deeply thinking about the case, figuring out where the real disputes are, as opposed to just disputing everything and throwing it to me to resolve. And I like to set up a relationship where we can work in a way that’s collaborative, understanding it’s adversarial, but to the extent we can figure out what makes sense in the parties’ view for the case, I think that ends up working better than the alternative where I just end up imposing something because the parties can’t come to a mutual proposal.

JUDGE CHHABRIA: And I wonder, Jackie, you and I have talked about this over the years, I wonder if I may differ a little bit from you on one point that you make, which is I think I might be less inclined to defer to counsel if they agree on an approach. I think I tend to ask, well, why are you proposing it this way. Is it just because that’s how it’s always done. You know, have we really thought about whether that might not be the right way to manage cases. I mean, it might make more sense to not make waves with the parties if they agree how to move the case forward, but I do find myself at times saying, no, I think we should do it this way and tell me why my idea is bad. And if they can’t explain to me why my idea is bad, I might impose my own way of doing it on both sides.

MS. CASTILLO: At the initial the CMC, do you like to set a case schedule early on that runs through trial or leading up to trial, or how far do you like to set the schedule

at the initial CMC?

JUDGE CHHABRIA: I set the case through trial except in class actions. With class actions I will set it either through summary judgment or through class certification, and then we will sort of regroup after that. And there’s often a big discussion about whether to do summary judgment as to the named plaintiffs first or do class certifications first, but other than those cases, I set the case for trial right away.

JUDGE CORLEY: I do the same thing, through trial. I think it’s helpful particularly as someone who does a lot of settlements, right? It’s always just more productive at a settlement conference when you can say to the litigants, look, if we don’t settle, this is what we know we have coming because we have the data, and what I find difficult is when I am referred cases where there is no schedule, not from these two sitting next to me. But anyway, but I do set it all the way through, and with class actions, it depends. If the parties request only through class certification, then I’ll do that, but sometimes I don’t, and then I’ll do it all the way through just to keep it—again, keep the case moving.

JUDGE CHHABRIA: My practice is similar. For non-class cases, I will generally set the trial schedule shortly after that Rule 26 conference. For class cases, I do set those through class certifications because the outcome of that motion can really dictate the path of the case and how long the trial would take and all those types of things. So that’s the default.

[Page 101]

I will say that I do sometimes, if the parties show up at the first conference and say we’ve been discussing a resolution, we think that if we have a finite period of time to talk about it, we may be able to work the case out. And so, and again, this is another place where counsel’s credibility is critical, as we have to have that discussion, and I have to make an assessment of how serious the discussions are and how likely they are to be productive and assess whether counsel is committed to giving it a good faith go. But if they are, and I’m persuaded of that, then I have had instances where I’ve said let’s take 30 days or 60 days or however long, come back for a case management conference, see what you are able to do in the interim and then proceed from there.

It’s so hard to tell, though, when they really want to take a serious crack at settling it versus they just haven’t done their discovery and they are asking for a continuance of the trial date, and the reason they give is to try to settle, but it’s really just because they haven’t done their stuff yet.

JUDGE GILLIAM: It’s true. In the instances when I have done that have usually been at the very beginning of the case where I have to assess credibility, and if there is a good faith chance for the case to resolve before the whole machine gets spun up, then I will give the chance to do that if I’m convinced that it’s a realistic good faith effort.

MS. CASTILLO: I would like to go back to what Judge Chhabria mentioned, which in class actions, what should come first, class certification or summary judgment, what is your take on that?

JUDGE CHHABRIA: It’s the eternal question. I have actually, and especially when I started on the bench, I tried as an experiment in a couple of cases to set summary judgment first to see if there just would be a resolution as to the named plaintiffs claim that would then mean that that person couldn’t be class representative and that would be feedback for the parties. I haven’t found that I’ve disposed of a case that way yet. It’s just tends to work out that there ends up being an issue of fact that precludes summary judgment, and then we’re on to the class questioning in any event. So I thought when I started that there was more of a prospect for an early dispositive data point for the parties that would be something that could be done before the class certification phase, but it just hasn’t worked out that way.

JUDGE CORLEY: I’ve had to work where the counsel was in agreement. Because, of course, you have to have the defendant willing to take the risk. That should the defendant win, it’s not binding on the absent class members, given the case has never been certified.

JUDGE CHHABRIA: And should the plaintiff win, it brings class certification; if the plaintiff then wins class certification, they have won the case.

JUDGE CORLEY: Right. But then you have to also have a plaintiff. But where I’ve had it done is because the defendant was willing to do that and the plaintiff wanted to do that because the defendant said we really think there is a problem with these representatives and their claims, and the plaintiff’s counsel, to her credit, didn’t want to spend all the time and money litigating class certificates which was just actually going to go away. So they agreed and we did it, and the case did resolve then after summary judgment.

[Page 102]

So, again, it goes to I think when the parties agree, when counsel agrees, judges should really look at that, in the absence of some data that says they don’t know what they are doing, really agree to it. So that’s what I do. But I would never impose it. I would never impose it without the agreement of both sides because they know their case more than I do.

JUDGE CHHABRIA: And when you say "impose," you mean you would never say we’re doing summary judgment as to the named plaintiffs before class certifications.

JUDGE CORLEY: I will never do it over defendant’s objection. I don’t think that’s fair to do that to them, but I would think about it if the plaintiff objected, as long as I was confident that an objection wasn’t based simply on, oh, we want to force an early sentence because of the cost of class certification. But I think that’s rare because class certification is costly on both sides. And plaintiff does not want to engage in that costly if they are not there either, but if they agree, I would definitely do it.

JUDGE CHHABRIA: I will not do summary judgment first if the defense objects because I actually think it’s under the case law you can’t force the defense to do that, but I also say to the defense, if you want to do summary judgment first, then we’re doing cross-motions for summary judgment, not if the plaintiff wants to file a cross-motion for summary judgment. It’s not just you who gets to file a motion for summary judgment to try to knock the plaintiff out. The plaintiff can try to win as well, if they think they can. So I think that every case is different and you really do have to take a good look at each case and think about what makes the most sense, but generally speaking, I am a pretty big fan of doing cross-motions for summary judgment first and have found—I think I probably have dealt with a lot fewer class certification motions because I do it that way, and, of course, it’s not about me and that’s not why I like it. I like it because I do think that it increases the chances of the parties getting a resolution without spending all that money on class certification.

I do find that a good number of plaintiffs object to this. I think some of them object reflexively because it’s not the way they usually do it. I do think that a number plaintiffs object because it prevents them from driving up the settlement value of the case. And they want to sort of do discovery on who’s a member of the class and get that expert discovery going on class certification in an effort to drive up the settlement value. So I think for those reasons it often is a good idea. I’ve often found it to be a good idea to do summary judgment first. And I feel like a couple of times it didn’t work out, but for the most part, it has worked out quite well.

JUDGE CORLEY: And it doesn’t have to resolve the whole case. So you can do the partial summary judgments and class certifications on a claim-by-claim basis. It can be very useful for the parties to figure out what are the claims that are going to go forward, so that class certification isn’t wasted on those claims that wouldn’t go forward, in any event.

So I, for example, would be curious what your practice is, and we’ll put in a plug, I don’t think any of my magistrate colleagues, we have no rules on the number of summary judgment motions that you can bring. It’s not that we want ten, but we might speak up. But because I do think litigation can be managed more efficiently if sometimes you have judges decide early on summary judgment motions, but parties are going to be reluctant to bring that if you’re telling them that’s your one and only, from either side.

[Page 103]

JUDGE CHHABRIA: And I agree with that. I’m not a fan of the one summary judgment rule. I’m also not a fan of the rule that says you have to go seek permission or like kneel before the judge to sort of get their blessing on filing a summary judgment motion. On that one let the parties litigate their case.

JUDGE GILLIAM: And I do have the single summary judgment motion as the default, but again, as with everything, if there is good cause shown for filing one after that, then I will always consider that, but I actually do want the parties thinking about moving for summary judgment to give some serious thought as to whether it’s a sensible approach at that time. So I do want there to be at least some sort of hanging over.

JUDGE CHHABRIA: Do you have that process that a number of judges have where you have to write a letter to the judge or you have to have a kind of conference with the judge to talk about whether you should be filing a summary judgment motion before they do it?

JUDGE GILLIAM: I don’t. I can see the appeal, but I haven’t implemented that.

MS. CASTILLO: What can attorneys do to effectively coordinate multiparty litigation in your court? Judge Corley?

JUDGE CORLEY: Get along.

JUDGE CHHABRIA: Exactly. Talk.

JUDGE CORLEY: Actually, I love when I see this, when they get together and they come up with a really thorough discovery plan, including, okay, each side is going to get, say, 150 hours. I love the hours of deposition as opposed to numbers because it avoids the fights as to who is going to be how long. I think it makes a lot more sense, right? Your 30(b)(6) may take 30 hours, and somebody else may take two, when they’ve talked about, as you do in antitrust cases, you have depositions that require translation. So they bake that into their hours and those kinds of things. They’ve agreed to search terms, or they’ve really just sat and really spent the time to go through all of it, which I think in the long run will save their clients money because it’s going to avoid all of those unnecessary fights.

And I know that there is a lot of give and take that goes in that and there is a lot of compromising on each side that goes out. And I think, what I like about that is I think that’s in their client’s best interest as well as opposed to some judges, for me, sort of deciding arbitrarily because I will never understand your case as well as you do. So that’s what I think is super helpful.

JUDGE GILLIAM: I just think in so much of what I will say today comes down to three words: meet and confer. I always appreciate it when the parties have this sort of relationship that they can narrow disputes. I understand that not every dispute can be eliminated. I entirely get that. That’s my job is to resolve the disputes. But what I expect the parties to do is to be in constant communication, figure out what really can’t be resolved, and then that can be elevated, but one of the things that always set my radar off is if I get an administration motion for something. We asked for this, and the other side said they won’t do it. And it’s not uncommon then for us to look at that as a contested matter and then get a statement a couple days later saying never mind, we agree to that.

[Page 104]

So those are the kinds of things that I like to have the parties work out. If there is something that really can’t be agreed upon, I’m always here to resolve it, but I think especially on a multiparty case having that mindset that the goal is to work out whatever can be worked out without the intervention of the court, and then however many that is, that’s fine. I’m not saying don’t bring things to me if they can’t be resolved, but I think the more parties there are, the more, from my seat, I appreciate seeing parties who have really thought things through and figured out how to efficiently work together.

JUDGE CHHABRIA: I agree with all of that. As for multiparty cases, I’m not really sure that I’ve had a multiparty case in my five plus years that has presented special management problems as compared to your typical complex case that is just between two parties. So I think those things become more of these things that Judges Gilliam and Corley are talking about become all the more important when you have the multiparty cases, but I haven’t had any special problems with that.

MS. CASTILLO: Judge Corley touched on discovery, so I want to transition to that and ask you what is your philosophy on how to effectively manage discovery and how do you balance the desire for efficiency with the need to get an adequate record for summary judgment, cross-adjudication, et cetera?

JUDGE CHHABRIA: First of all, my default in most cases is to keep the discovery dispute myself. There’s an exception for patent cases.

JUDGE CORLEY: Thank you.

JUDGE CHHABRIA: You’re welcome. But I think most other cases and certainly the two MDLs that I have, and most other cases, I will initially keep discovery myself. Just on the theory that it’s better for one judge to be managing the case than two. In most instances I have the procedure, like I said, that I think most of us have where you submit a joint five-page discovery letter, and that’s what tees up your discovery dispute.

I find that most of the discovery disputes can be resolved simply by reading that letter and maybe the discovery requests that they are fighting about and the objections, and you have to stay on top of it. You can’t just let the discovery letter sit in your inbox. But as long as you stay on top of things, I think that’s the most efficient way to resolve most discovery disputes. Then for the ones where that doesn’t work, I will either refer to a magistrate judge or have a hearing myself or force them to both come and lock them in a room and make them talk until they figure it out.

But I have not found that discovery issues have really slowed down my cases very much, for the most part. I think there are some exceptions, at least from my perspective. I haven’t seen discovery battles and discovery problems be a big issue in the speedy adjudication of cases.

[Page 105]

JUDGE CORLEY: A practice I started a couple years ago in my own cases and also cases referred to me for discovery, is I allow counsel to contact my courtroom deputy and set up an informal telephone call with me and the parties when a discovery dispute is brewing, I don’t know in advance what the dispute is, and we get on the phone, and I say how can I help. And one side will describe what the issue is, and the other side. And I just give them my off-the-cuff instinctual reaction, and when I tell them I’m not going to rule. I’m not going to say anything binding because that wouldn’t be fair. Because you haven’t had an opportunity to present it to me. But I’m just going to give you my instinctual reaction.

I would say 95 percent of the time that staves off the discovery disputes. Maybe because a lawyer can now go back to the client and say, now, the judge said she’s likely to order this so why bother spending the time on this. And maybe sometimes they will just say, offhand, it will just be like, when are you going to produce that document? Oh, and then miraculously, they find that they have a date that counsel couldn’t get out of them for however long. So I’ve done that practice, and I found it’s interesting.

I actually think in my more complex cases, my most sophisticated lawyers are using that process the most, which I find really quite interesting, even in some MDLs where I’m assisting with the discovery as well. And I think that is because a lot of disputes are not worth, frankly, the big full-blown letter all the time, and the delay, right? You just need an answer, and the judge giving you her reaction can just help you and help the lawyers move on, and so I found that to be very expensive.

JUDGE CHHABRIA: Sorry to interrupt. I bet you’re right that a lot of it is particularly on the defense side that they can go back and talk to their client about it. That they can say, look, I’m having a hard time getting a date from you for this 30(b)(6) or I’m having a hard time pulling these documents out of you because you think they are embarrassing and you don’t want to disclose them. But I’m telling you, the judge had a very strong reaction the other way, and the judge has the power to sanction us. We have to pay the other side’s fees if we don’t turn it over. I bet that is a big driver behind it.

JUDGE CORLEY: The danger is that sometimes that can be a crutch. It takes a lot of time, my time as well, to do that. But if I started to feel like that’s being abused, then I will just quit and I will say, okay, they have to come in person, and that’s the other thing—I will give you all my secrets.

The other thing is when a case is referred to me for discovery, so I’ve never seen the parties before. It’s usually with the dispute, but that first dispute I will have them come in, so I can get to see if they are getting along, sort of set the ground rules. I talk about my informal procedure, and I will mostly continue to have in-person hearings. But when it occasionally happens, I start getting letters, joint disputes letters every week, then I just start issuing really pithy orders and they never get to come in, because I don’t want them to have the satisfaction of coming to see the judge and being able to talk about what the other side thinks. So if you start to see those orders coming from me, you know I’ve gotten tired of you.

But that’s just my thing about managing, and that seems to work. I have this case now, actually it’s your case, Judge Gilliam’s, where I literally have a call with him every week. Because they just needed it, right? Or one side in particular, and they just needed it. And so I’m having a call every week. When something is referred to a magistrate judge for discovery, our goal and our obligation is to not delay the case, and really facilitate, consistent with Rule 1 in those discovery disputes, not getting out of control and not delaying the case. And so sometimes what that means is having calls with the parties every week, so I’ll do that as well.

[Page 106]

And the other thing I would say my philosophy is with the dispute is when you come in, I’ll say what do you want. And don’t read me your document request, right? I don’t care what that says. I just want to know in plain English what is it that you want, and for the defense, why won’t you give it to them. And usually when the one side says in plain English what they want, the other side will say, oh yeah, I can get that for you.

And so that’s what I’m going to say. Don’t tell me about your meet and confers and all that. I mean, I’ll let them say a little bit and I’ll say stop. Just describe what you want, which is sometimes what we will do is we’ll say when I really feel like they haven’t had that discussion is I’ll say come in, I’ll give them that lecture, and then I will send them up to the attorney lounge, and I will say when you’re ready to put something on the record, tell Ms. Means, I’m here all day, or when you reach impasse. Then we’ll come in.

And I actually did that last week, and they came back and they said everything is now resolved. We don’t need to put anything on the record. And I’d say most of the time, 90 percent of disputes get resolved that way as well. I only do that when I have the sense that they haven’t really met and conferred. I don’t want to waste your time. So anyway, those are some of the tricks of the trade.

JUDGE GILLIAM: I’m pretty sure I know which case you’re talking about. I do, in the ordinary course, refer my discovery matters to a magistrate judge. The one point that I would make on this topic is the parties have to walk a line. There is a balance. On the one hand, as I’ve said, I want with discovery, as with all things, for the parties to take the time and tee up the dispute, figure out whether it can be worked out, and if it can’t, raise the issue. So there is some amount of time that that takes to go through that process.

On the other hand, something that I see very commonly and don’t take too well is the idea that the schedule that we’ve set, that we discussed at the initial case management conference, needs to be extended by six months because we are having all these discovery problems, and this is happening, and that’s happening. And what I tell the parties is I’m relying on you to figure that out early within the confines of the schedule that we’ve set. Now, sometimes, it just can’t be done and things blow up and there are unique circumstances, and I understand all that. But really, the expectation is that once we’ve got the schedule, that process of figuring out how to get the discovery exchanged and how to resolve any disputes that come up with the magistrate judge that’s assigned to the case has to happen in a way that respects the schedule. And so I’m surprised how often I see the reflexive request that says, well, we just can’t do it, judge, so we need many more months to work out these discovery problems.

JUDGE CHHABRIA: And I think that’s a really good point, and I think most of the time when somebody comes to you at the end of the discovery process with that kind of story, what you learn is that they kind of twiddle their thumbs for the first half of the discovery period, right? And usually what I say is, no, we’re going to trial. You’ve had your chance, and, you know, let’s do it like the old days. We won’t know every single minute fact before we go to trial. Let’s just go to trial.

[Page 107]

JUDGE GILLIAM: Do you write those Rule 16 orders, or do you just do it on the record, denying the request for the continuance?

JUDGE CHHABRIA: I think it’s usually just on the record.

JUDGE CORLEY: One thing you should know is unlike settlement, when a case is referred to me for settlement, we don’t discuss the case, right? But if it’s referred to me for discovery, I am discussing the case with them because I’m part of the team that’s managing the case. So you should know that. That we are all working together on that, and I’m communicating with them about it.

JUDGE CHHABRIA: You would not believe how unreasonable this lawyer is being, Vince. I mean, I’ve heard that from you before, right?

JUDGE CORLEY: Or Judge Chhabria, the schedule is ridiculous. You don’t know what you’re doing.

JUDGE GILLIAM: See, I never get that call.

JUDGE CHHABRIA: I get that call a lot.

II. USING EXPERTS AND SCIENTIFIC EVIDENCE IN COMPLEX LITIGATION

MS. CASTILLO: Let’s move on to experts and scientific evidence. It seems like the use of experts is increasing more and more every day. The expert reports are getting longer in every case. What’s your perspective on the use of scientific evidence in complex cases and what are effective and ineffective uses of scientific evidence?

JUDGE CHHABRIA: Maybe I sound a little bit like a broken record, but I don’t think there is an answer you can give to that question that fits all cases. I think it really depends on the case.

There are some cases, and the biggest confrontation I’ve had with scientific evidence is in the Monsanto MDL about RoundUp and whether RoundUp causes cancer. And the scientific evidence in that case was going to make or break the case. So you just have no choice but to put a ton of time into that and make it a major priority. And you might have a science day where they come educate you on the principles of the science before they get into the expert testimony, and then you have to read those long expert records, and you have to have Daubert hearings. And I think in the Daubert hearings, the judge has to be very active in questioning the witnesses. Can’t just leave it to the lawyers.

I think the expert is a little more likely to be a little more forthright when the judge is asking him questions than when the lawyers are asking him questions on direct or cross-examination. And it’s a really challenging part of the job, especially for somebody like me who went to UC Santa Cruz and took one science class called "Physics for Poets." You know, there is an attempt to bring scientific evidence in.

[Page 108]

This happens in civil cases and in some civil cases, it’s really just a little bit of a side show because it’s cast in the veneer of the science. There is a concern that a jury might place greater weight on it. I think that’s particularly true in criminal cases. And I think judges need to be very careful about when to let that in. And not just, is it something that’s going to be helpful to the jury, but is it something under Rule 403, is it something that’s really necessary that really needs to be part of the case or will it be unduly prejudicial to one side or the other. But I think there’s no one-size-fits-all approach to scientific evidence or expert testimony in general.

JUDGE GILLIAM: I haven’t had the massive sort of Daubert proceeding that Judge Chhabria had in the RoundUp case. I think what is challenging in dealing with scientific evidence and proffered expert evidence overall is that I think Daubert motions are ubiquitous in my cases, and it’s very hard to find a dividing line between true Daubert material, real junk science, something that is just not reliable enough to put before the jury.

And argument is about weight, and I find that those get blurred together in a way that is a challenge to sift out. As Judge Chhabria is saying, it’s a huge investment of our resources because really we’ve got to dive into the reports and try to make that tough determination. And I think that my impression is that a Daubert motion is essentially thrown out there in most cases just to see what happens. Maybe the judge will buy it, but oftentimes, it seems to me that really the matters that are being raised are ones that are weight issues or they’re for cross-examination, or there are disagreements about the substance of the opinion. But I have not very often had a circumstance where I’ve found that the methodology or the underlying science was such that exclusion was more of a given.

The Daubert motion that I granted that immediately comes to mind is about an expert coming to testify about legal conclusions. That one was pretty easy. But when you’re talking about science and even social science and economics and those types of issues, figuring out how to strike that balance between true Daubert and weight-type issues is a real challenge and takes a lot of resources, from a chamber’s perspective.

JUDGE CHHABRIA: Your comments triggered a couple thoughts in my mind. One is that I think oftentimes people will file Daubert motions in connection with summary judgment motions almost as a way to further argue the summary judgment, and I’m starting to wonder if I should adopt a rule that says there can be no Daubert motion alongside the summary judgment motion. You have to argue it altogether in a summary judgment brief. That’s kind of a small point, but the bigger point is that your comment about the blurry line between admissible and inadmissible, the problem with the law in this area is that for every statement of principle that you find in favor of admissibility, you can find an opposite one, the converse in favor of excluding it.

For example, you say, well, the credibility issue is for the jury, right? You’re not supposed to exclude it, an expert witness, because they have credibility issues. But then you also have statements in the law that say if the expert’s analysis is outcome-oriented, it should be excluded. Well, if the expert’s analysis is outcome-oriented, it’s a credibility problem, right? And so, for every statement that you find in support of admissibility, you can find a statement of principle on the other side in support of inclusion, and there really is no clear line.

[Page 109]

And the only other comment I’ll make about that, which I made kind of loudly in the Monsanto case, is that the Ninth Circuit case law is very forgiving of sketchy expert opinions. And so it’s almost like in some of the Ninth Circuit cases you read, if this person is qualified, if this person has the qualifications, you just have to let them go before the jury. I mean, it’s not quite that bad, but it’s close.

And so, having now sort of studied the law of all the circuits in connection with this Monsanto case, I believe that there is a significant difference in the law of the different circuits on Daubert that can, in some cases, make a difference.

MS. CASTILLO: In antitrust cases, there is usually testimony from experts regarding collusion and damages. Do you have any tips for how lawyers can present this really complex economic evidence to juries or to you to make it more digestible and understandable?

JUDGE CHHABRIA: No.

JUDGE CORLEY: I was going to say settlement before you get to the jury.

JUDGE GILLIAM: When you just realize, the expert witnesses are like any other witness in that the jury is trying desperately to figure out who is telling them the truth, right? Who is shooting straight. Are they well-equipped to know who that is when you’ve got these complicated economic concepts? Probably not. But I think experts who are good teachers and are committed from the beginning, both counsel and the experts, to the idea that what matters here is making sure that either the judge at that stage or the jury understand. Like, you don’t get points for showing off how complicated it is. You want credit because I’ve mastered this really complicated thing.

I think lawyers fall into that too, where the presentation is an opportunity to show off the last four years of work in the mastery of this really complicated thing. And you just have to realize that that’s not the goal at that stage. And so, believe me, I’ve got some cases coming up for trial where I’m very eagerly looking forward to seeing how on earth the experts and the lawyers can explain those to a jury. That may have a truck driver, and have somebody who works in retail, and have the physician. It makes me remember how hard being a lawyer really is.

JUDGE CHHABRIA: One big problem in this area. This isn’t specific to damage models or anything like that, damages models, but judges are increasingly imposing time limits on civil trials, I think understandably so, because we are really concerned about the amount of time that eight members or ten members of the community are spending on this case, and we really want the lawyers to be efficient.

On the other hand, I think what judges have to remember is that in a Daubert hearing you get to read the expert reports before the expert testifies. If there are studies or literature that the expert is relying on, you get to read that literature, and then you get to listen to the expert testify, and you get to ask the expert all kinds of questions if you’re not clear on something. And you compare that to a jury trial, where the jury does not get the expert report, does not get the studies that the expert is relying on.

[Page 110]

Maybe you call out a snippet of a study during the expert’s testimony and put it on the board for the jury, but the jury doesn’t get to go back and read the studies and put it into context. And the jury is just hearing the very abbreviated version of what the expert is presenting, and I think that’s a real problem. I don’t know the answer. I don’t know how to deal with that. I think that creates a real problem in terms of the juries being able to understand what the expert is presenting. I think the juries are capable of it.

I mean, certainly, my experience with juries is that they are smart. They’re super conscientious. They really put in the effort and they want to understand. They are capable of it, but are we really giving them the time to understand? And if we’re not giving them the time, is the solution to give them the amount of time that they really need to understand, or is that problematic because then it turns a six-week trial into a six-month trial? I don’t know the answer.

III. EFFECTIVE TRIAL MANAGEMENT AND ADVOCACY

MS. CASTILLO: What have you found particularly effective at trial? It can be anything. What have you seen that you liked that resonated with you that you thought, this is really good?

JUDGE GILLIAM: There are a couple of things. One process thing and one practice point kind of thing. My practice in trials is I really like to front-load issues as much as possible. So if we’ve got a category of documents that’s being offered, and there is a hearsay issue that I need to sort out, it is so much better to do that at the pretrial conference. Or I actually have a process where during trial if there are issues that come up for the next day, I have the parties see if they can work it out.

If they can’t, they each get to file a short brief by 10:00 a.m. And then we come in at 8:00 a.m. or earlier, if we need to, to work it out so that the jury doesn’t sit around while we work through this, so we don’t have a bunch of side bars that are clunking up the trial. So I really appreciate it, and I build this into my processes. But I think when lawyers can go with that and not fight it, I think the trial ends up progressing in a way that goes smoother for everybody, where we can have fewer on-the-fly issues, fewer disruptions. That’s something I really like to do in terms of a process, from a process standpoint.

From just an in-court standpoint, one of the things—and I was trying to think as I was preparing for this, how to characterize it—and the best word I can come up with is "awareness."

I had a bench trial with some really good lawyers. And just this little thing jumped out, which was the lawyer was in the middle of examination, and you can see the court reporter getting more and more frantic because he started talking too fast, and she was showing distress on her face because he was going too fast. And he said on the record, "I see from madam reporter I’m going too fast. Let me slow down, Your Honor."

And just being attuned to what’s happening in the courtroom, not face down in the outline, not missing the response because you’re on to the next question, just getting to the point where you have that level of—just the ability to step back and be aware of what’s happening in the courtroom, something that was just a nice moment that stood out in that trial.

[Page 111]

JUDGE CORLEY: I would say using technology smoothly and competently is really effective. I know I’ve seen our jury starting to be a little younger. We have a lot of millennials, right? They are used to that. Instagram or whatever, like they need, they want to see things. In a lot of the cases I’ve tried, we have video in every case. But using it competently, right? Because so much of I think what a jury trial is, is the jury trying to figure out which lawyer can I trust, who do they think is telling them the right thing. And if your machine or whatever is not working and you’re constantly stopping and having to ask your colleague to do something, you just don’t look competent.

So I think learning to smoothly use that technology is super important and really that you should be practicing that. You probably all do, but you should be practicing that as much as you’re practicing your closing and what you’re saying is how you’re doing it. That transition so that it’s all smooth so that you come across as super competent so that they will trust you when you say my client is right, rule in my favor.

JUDGE CHHABRIA: You know, I feel like the best lawyers, one of the things that trial lawyers, one of the things that distinguishes them is preparation. Just knowing where everything is on the deposition of the witness you’re cross-examining, the technology stuff that you were just talking about, but knowing the record cold. I had one patent case where the plaintiff’s expert was testifying that the patent is invalid, and on the second to the last page of his deposition from six years ago, he had testified that the patent was valid. Or vice versa. I can’t remember which one it was. But just like the lawyers being really well-prepared, those are the ones that usually win the case.

I’m not sure if it’s totally responsive to your question, Elizabeth, but my big pet peeve with respect to trials relates to jury instructions. My experience with juries is that they take instructions very, very seriously. They read through them very carefully. They talk with each other about the jury instructions and what they are being instructed to find. And words matter.

And yet I find 95 percent of the time with the lawyers they don’t take the jury instructions seriously. And it’s like an afterthought. I remember one time I had a trial in private practice. The partner I worked for was like, you deal with jury instructions. I don’t even want to see them. You argue them. You put them together. I understand it because you’re focusing on your opening statement, your closing argument, getting ready to cross the witnesses, all that kind of stuff. But you are making a big mistake by not really poring through those jury instructions. And you’re making a mistake by unthinkingly submitting the pattern instruction without thinking about whether your case is a little bit different and requires a tweak to the pattern instruction to allow the jury to understand precisely how they need to apply that principle of law to the facts of your case.

And so that’s my biggest advice for trials.

JUDGE CORLEY: And I feel like, to say this to this group, I think it’s malpractice to do a closing argument and not refer to the instructions and have the verdict form out there and fill it out for the jury. But you would be surprised the number of trials where I see that the lawyers don’t do that. I mean, that verdict form has got to be up there, and you show them exactly what they should do, and go through those instructions and talk about the evidence in connection with the instructions because that is what they are going to do when they get back there. So you should be using that closing as the opportunity to tell them exactly what they should do and tether the evidence to those instructions and then tether it to the questions on the verdict form. Particularly in these complex cases, you’re going to have long special verdict forms.

[Page 112]

IV. PERSONAL STORIES AND EXPERIENCES

MS. CASTILLO: Now, I have some individual questions. Judge Gilliam, you practiced antitrust law before you became a judge. What was it like practicing antitrust law versus now presiding over these antitrust cases?

JUDGE GILLIAM: So most of my work in private practice was criminal antitrust, so it’s nice to not have to answer to the Department of Justice anymore.

The other thing, having this job has made me realize that we truly are the last generalist in the system. When you have a big case in private practice, you’re spending all your time thinking about that case and working on mostly that case for potentially a long time. And in my current job, you have to understand that the hearing before your hearing was a criminal sentencing in a felony possession case, and a hearing after yours is a 1983 excessive force case.

We just have to do much more multitasking in terms of the bandwidth. And so it certainly highlights to me, though—we obviously we work hard, we read the papers, we prepare. But to the point Judge Corley was making earlier, it’s always going to be the case that you’ll know your case much, much better than we do. And the one obvious ramification of that, it is critical for your credibility not to ever shade anything.

Because if we have to do the drill-down, the one thing that I never like to hear but happens distressingly often is just the two sides saying the facts are diametrically opposite in terms of what someone did or what was said or what the representation was. The fact that you have that in-depth knowledge that we don’t is a big responsibility.

Because if I get to the point where I have to resolve one of those disputes, credibility can be damaged, not just in this case, but in every case that I ever have with you. But that’s part of it, just realizing that in my current job, we’re really constantly shifting from one thing to another, and there are very, very different types of cases that make up an average day.

MS. CASTILLO: Judge Corley, your path to the bench was nontraditional. Can you tell us a little bit about that and give career advice to those who have nontraditional career paths?

JUDGE CORLEY: Yeah, sure. So I was about a year from partnership with the Coblentz firm when I had my second child and my first wasn’t even two yet, and I was working with Judge Breyer. He got nominated, and so I left practice, and I joined him as his career law clerk because I had clerked right out of law school, and I was working with him in private practice at the time. And I told him, okay, I will stay for about four years and I will be back. And I ended up staying for eleven and a half years, and it was a great job, and one reason it was so great is that Judge Breyer trusted me and he gave me the flexibility.

[Page 113]

And when I first started, I would come in three days a week, and so I would have two days at home. And I still kept half my docket, as Judge Chhabria will tell you.

JUDGE CHHABRIA: But I was like, who is this person, she never comes to work. I mean, I was young then. There were two misconceptions I had about you. One was this person is lazy. She’s only coming to work three days a week. She’s really smart. Maybe she can handle it. Fine. And the other thing was like, you had these small kids, and I would see your car, and it was just filled with junk. And I’m like, God, is my court clerk a hoarder or something. What is wrong with this person, and, you know, but I was very young. And, of course, I got older, and I had kids. My car became filled with junk, and I realized that Jackie was simply a hyper-efficient, brilliant person who could do all of the work, only coming in three days.

JUDGE CORLEY: Well, the truth is, I worked at night. I worked when my kids napped. I made sure they power napped, right? So that I could get my work done, but I did it, and I’m so grateful to Judge Breyer. It was such a benefit to me, and I would like to think, maybe Judge Chhabria would say I taught him everything he knows, is that I did a good job and that I fulfilled my obligation, but I still had this nontraditional way of doing it. And then when I left clerking, I decided to go out there, and I’ll tell you—some may have involved a case that actually did it—to me was the Celebrex Baxtra MDL. And I was working so hard as a law clerk, I’m like, those lawyers are out there making all this money, I quit. And I went to private practice, but I was really concerned that I would have a hard time finding work.

And it didn’t work out that way, and obviously, I’m so blessed and so fortunate the way it turned out. But the advice I always give to newer lawyers is just make that decision that you need to do on your personal life, and hopefully everything else will follow. And if it didn’t work out, right, if I couldn’t do it, and maybe if I had still—I wouldn’t say "stuck." If I still was clerking as the career clerk for Judge Breyer, I would do it all the same way again because at the time it was the right time for my family.

And I know you don’t hear that very much. I do ultimately think in the end we’re human beings, right? And that’s the most important thing. And so that’s the advice I always give, is I do think you need to make those decisions. And I’ve been so fortunate that I’ve been able to have just the best career, but also I have the best family, and I would always choose family first.

MS. CASTILLO: Judge Chhabria, you clerked for Judge Breyer and then Justice Breyer.

JUDGE CHHABRIA: Why is it always about Judge Breyer, even when he’s not here? Events are always about Judge Breyer. Anyway, sorry, go ahead.

MS. CASTILLO: Were their styles more similar or different? What were your experiences like?

JUDGE CHHABRIA: Very different. I mean, they sound similar. You might hear one talking down the hall and you don’t know which one it is almost, that sort of baritone enthusiastic expression. But so in that way, they are very similar. I mean, Charles Breyer is the perfect District Court Judge, and Stephen Breyer is the perfect Supreme Court Judge.

[Page 114]

I remember one thing Judge Breyer always said is, yeah, they sent me to Harvard college because they needed me to get more serious about my studies and stop goofing around, and they sent Stephen to Stanford because they wanted him to get out more and interact with people. Stephen Breyer is very much the absent-minded professor, and Judge Breyer is very sort of focused on what is in front of him.

But the similarity is more important than the differences, and similarity is they come from a family of public servants. Their grandfather was a member of the San Francisco Board of Supervisors. Their father was a giant in San Francisco. He was the general counsel for the San Francisco Unified School District for many, many years. People often refer to him as having run the school district during that time, and the biggest way they’ve probably rubbed off on me is they are true public servants.

I mean, they care so deeply about serving their community and serving their court, and there are lots of ways I don’t try to emulate Judge Breyer because it would be a waste of time. But in terms of the commitment they have to the community and wanting to do their job in a way that makes a contribution to the community, they are both very similar and real role models.

MS. CASTILLO: Okay. Last question of the afternoon. Oftentimes in these complex cases there’s big teams on both sides of the V. If you’re a young associate, and there’s a lot of young associates here this evening, what advice would you give them to make themselves stand out, get substantive work and be indispensable?

JUDGE CHHABRIA: Go work for the government. I mean, seriously, if you’re a young lawyer and you want to get good experience under your belt and have real responsibility and, again, make a contribution, you’re way better off going to work for the government than you are in private practice.

JUDGE CORLEY: That’s a cynical answer. So ask, right, ask. So almost all the judges I think now in the Northern District have rules to encourage to give opportunities to less experienced lawyers, so tell the partner, ask to do it. So in my court, for example, what I say is I have no rule. I don’t care how many lawyers want to argue a single issue, that’s fine, so that the partner and the client is comfortable. If the associate is giving away the store, they can stand up and take it back. So for associates, just ask. Lots of times they don’t know if you want to, and so you have to ask to do that, and then start with the little things. Come say, you know, that discovery dispute and then come super overprepared, right? So spend way more time, don’t put it down on your billing so they don’t know, but just do it at first so they can come to you with that outstanding job and they’ll give more to you.

JUDGE CHHABRIA: I think Jackie sees that part is really important about letting the partner or the more senior lawyer come clean up. I think that’s critical for the clients, right? If clients are not assured that that can happen, they are not going to want the young lawyer to argue even if the senior lawyer wants them to argue. So that’s a really good point.

The other bit of advice I was going to give, and I’m sorry I had forgotten to mention this, I think that you can get away from your talking points. When you do get the opportunity to go up there and argue, I did this when I was a young lawyer, I sort of had my talking points, and regardless of what judge’s question was, I tried to shoehorn one of my talking points into the answer, right? But the sooner you can get away from that and the sooner you can just be having a natural conversation with the judge, without any talking points in front of you, and just knowing your case cold and really listening to what the judge is asking you and responding directly to their question, that’s a way to make yourself really stand out as a young lawyer, because 95 percent of the young lawyers don’t do that.

[Page 115]

JUDGE GILLIAM: Yeah, just a couple of points to follow up on those. One is I agree with Judge Corley; you have to ask. I always tell young lawyers no one is going to create the career that you want for you. You’ve got to figure out what is important to you and what you’re looking for no matter what you’re doing, and then make it known that you would like to do a deposition this year, you would like to have a chance to do an argument.

Pro bono is a huge opportunity in that way, and it’s good on multiple dimensions. It’s a good way to get experience and actually have the direct responsibility for a client relationship and a real person’s legal problem in a way that you may not get in all the cases working on a big team. And it’s just an important foundation for yourself in terms of service.

The other thing I always encourage young lawyers to do is start thinking early on, what would I do if this were my case, right? I think it’s easy to sort of get your head down and you’re reviewing documents or you’re writing discovery requests. Even though you’re doing whatever you’ve got, your tasks, that’s great. You have to excel at your task. But think about the bigger picture and show curiosity about the bigger picture. Have a good idea—always be thinking, if I were running this case, what types of things would I be thinking about right now.

As we all know, a partner may or may not have the same point of view as to that. But I think in terms of distinguishing yourself as a young lawyer, the kind of person who is obviously thinking about the case or the strategy or the bigger picture and offering thoughts about that, is someone who becomes really valuable as a partner. Because you see that this is someone who is not just punching a clock. This is someone who is really thinking about how can we do the best job representing our client.

MS. CASTILLO: Thank you, Judges, for your time and your wisdom. Let’s give the judges a round of applause.

[APPLAUSE]

[Page 116]

——–

Notes:

^1. Elizabeth Tran Castillo is a partner of Cotchett, Pitre & McCarthy, LLP. Her practice focuses on antitrust class actions against international cartels. Ms. Castillo has represented clients in both federal and state courts and at all stages of litigation, including discovery, trial, and appeals.