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Sunday, December 29, 2013

What effect pleadings?

The dueling decisions by two different federal district judges on the NSA surveillance program--one upholding it, one invalidating it--reminded me of a post I wrote in June comparing the two complaints. I argued that the complaint in ACLU v. Clapper (the Southern District of New York case) was better than Klayman v. Obama (the District of D.C. case). The latter had a lot of extraneous noise and "pleading as press release" nonsense, a number of legal mistakes, and asked for the ludicrous sum of $ 3 billion in damages; the former was cleaner, simpler, and legally sounder.

So what should we conclude from the fact that the plaintiff won in Klayman but lost in ACLU? Two possibilities jump to mind:

   1) Pleading-as-press-release works not just publicly but legally as well. Heightened, overstated, politicized pleading does affect the judge by impressing the urgency of a constitutional claim. That is lost in a complaint that lacks the "passion" we see in Klayman.

   2) Pleadings don't matter to the outcome, at least in constitutional cases. It's all about the legal arguments made in the subsequent motions related to injunctions, dismissal, or summary judgment.

Other possibilities?

Posted by Howard Wasserman on December 29, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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Comments

How about the fact that you shouldn't draw any inference from two data points?

I also think lawyers believe they have a much greater influence over the result in a case than they do. At the end of the day, the state of the law, and the identity of the judge (or judges), is substantially more important. This is particularly true in federal court, where most judges are at least competent and they usually have competent law clerks. Given that, it's particularly hard to make any inference about the effectiveness of lawyering strategy, even when you have a larger number of cases to examine.

Posted by: Doug | Dec 29, 2013 10:02:16 AM

I pretty much agree with Doug. I would also point out that these two cases involve extremely high-profile constitutional challenges, for which there was national news coverage of the case from start to finish even in the district court. When a judge's every move is covered in the press, it's less likely that the judge is going to let the quality of the pleadings make a difference.

Posted by: Orin Kerr | Dec 29, 2013 12:15:44 PM

I agree with the first part of Doug's claim, and the second part of Doug's claim, under the conditions Orin describes.

But as a general matter, the proposition that "lawyers believe they have a much greater influence over the result in a case than they do" I believe to be the opposite of correct. If it is right, why would all of those corporations and rich individuals pay for Skadden or Cravath when I will do their work for three percent of the cost? The papers might not have all the nice cases, statutes and facts, but I promise I will not miss any filing deadlines.

Seriously, I believe that lawyer quality is the single most important factor in the outcome of cases. But I admit that that belief is based on my impression of what I've seen--and the unmistakable message from the market--rather than any scientific evidence. And (to restate but I don't think contradict Doug's second-to-last sentence) there is significant variation in the smartness of federal judges and law clerks as well.

Jack

Posted by: Jack | Dec 29, 2013 9:45:10 PM

I agree with Jack that quality of lawyering is important, although not necessarily outcome-determinative. But my point wasn't entirely about the quality of lawyering, but only on the quality of the complaint.

Posted by: Howard Wasserman | Dec 29, 2013 9:50:11 PM

Jack, I believe lawyers can have only a margin impact on a case’s outcome, yet it still be worth it to pay absurd amounts of money for big firm counsel. Many cases litigated by big firms are worth tens, if not hundreds, of millions of dollars. In those situations, paying a lot more for counsel to give yourself a ten percent better chance of winning might very well make financial sense.

That being said, I also believe that there are massive market inefficiencies in the delivery of legal services. I think the market is beginning to correct itself, but I have little faith that the market will ever accurately capture the worth of legal services. I think part of the problem is that it’s hard to know the worth of a particular lawyer or team or lawyers. Great lawyers loose cases and terrible lawyers win cases. Given the complexity of lawyering, I think it can be hard to know as an outsider whether a lawyer lost a case because he was terrible or whether he lost a case for other reasons.

I also think that most corporate decision makers simply do what they believe everyone else is doing when it comes to purchasing legal services. If you try something new and you lose a big case, you risk losing your job (or, at least, credibility), even if that new strategy was the optimal strategy. You see this same dynamic with sports franchises. It takes decades for decision makers to reject “conventional wisdom,” even when it is has been thoroughly demonstrated that conventional wisdom is wrong.

Posted by: Doug | Dec 30, 2013 11:02:10 AM

Jack, I believe lawyers can have only a margin impact on a case’s outcome, yet it still be worth it to pay absurd amounts of money for big firm counsel. Many cases litigated by big firms are worth tens, if not hundreds, of millions of dollars. In those situations, paying a lot more for counsel to give yourself a ten percent better chance of winning might very well make financial sense.

That being said, I also believe that there are massive market inefficiencies in the delivery of legal services. I think the market is beginning to correct itself, but I have little faith that the market will ever accurately capture the worth of legal services. I think part of the problem is that it’s hard to know the worth of a particular lawyer or team or lawyers. Great lawyers loose cases and terrible lawyers win cases. Given the complexity of lawyering, I think it can be hard to know as an outsider whether a lawyer lost a case because he was terrible or whether he lost a case for other reasons.

I also think that most corporate decision makers simply do what they believe everyone else is doing when it comes to purchasing legal services. If you try something new and you lose a big case, you risk losing your job (or, at least, credibility), even if that new strategy was the optimal strategy. You see this same dynamic with sports franchises. It takes decades for decision makers to reject “conventional wisdom,” even when it is has been thoroughly demonstrated that conventional wisdom is wrong.

Posted by: Doug | Dec 30, 2013 11:02:10 AM

"That being said, I also believe that there are massive market inefficiencies in the delivery of legal services. I think the market is beginning to correct itself, but I have little faith that the market will ever accurately capture the worth of legal services."

This is consistent with the shift we're seeing towards big corporate clients engaging firms in the AmLaw 100-200 range (and the corresponding growth of those firms). The clients are increasingly realizing that they're getting the same level of talent with a 300 attorney firm (usually based outside of the big coastal cities), but at $300/hour instead of $600/hour.

Posted by: Agree | Dec 30, 2013 11:45:19 AM

Great post. Thanks for sharing this one. Although I would argue that when you're up against corporate powers-to-be, it's a steep uphill battle!

Posted by: Jonathan Stevens | Dec 30, 2013 1:49:42 PM

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