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January 03, 2016


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Enrique Guerra Pujol

Nice try ... But delay tends to favor defendants more than plaintiffs

Sy Ablelman

I wonder if any of the Supremes are taking advantage of PSLF?

Matthew Reid Krell

Enrique: what evidence do you have to support that statement? As a plaintiff's lawyer, I would always rather be paid sooner rather than later; delay introduces uncertainty. ...I guess I just answered my own question. But I see it the other way too: delay gives me time to force a recalcitrant defendant to the negotiating table, and gives evidence time to come to light that would support my claim.

I think the problem is that "speedier litigation" is a dog whistle for "don't let plaintiffs investigate thoroughly." In other words, if your client doesn't walk in with the evidence already in hand, the Chief Justice's preference for a faster process is intended to eliminate claims that require discovery to prove out.

On a related note, I have never understood why the defense bar takes positions as an organized interest group that put their clients' interests ahead of their own. When litigating on behalf of a client, sure - but in my home state of Mississippi, the defense lawyers' association has repeatedly lobbied, both as amici and in the Legislature, for policies explicitly intended to reduce the number of lawsuits. Why would you take money out of your own pocket that way? Might be a publication there for someone. The Chief Justice, at this point, can be forgiven his position - judges see litigation differently than litigants. But why would defense lawyers make it harder for them to make a living?

Howard Wasserman

First, does delay relay favor defendants? That would seem to run counter to the assumption underlying the existence of statutes of limitations.

Second, Matthew: My guess would be that many defense attorneys, especially those who represent entities, work for their clients on retainer.They are paid for non-litigation work, especially advice and counseling on how to avoid litigation. Yes, they would make more if litigation arises. But it is different than a plaintiff's lawyer, who has no business if an injured person can't sue.

Steve L.

Does delay favor plaintiffs or defendants? There is not a single answer.

At first, as Howard has pointed out, quick dispositions -- dismissals; judgments on the pleadings; summary judgments after limited discovery -- almost always favor defendants. After that, an extended period of litigation -- mostly discovery -- will tend to favor plaintiffs. After that, lengthy delays favor defendants, and infinite delays favor defendants absolutely.

Howard Wasserman

I'll contest slightly Steve's middle point--that extended discovery favors plaintiffs. I think it depends on why discovery is extended. It may be that the defendant is fighting the plaintiff on every request--interpreting them narrowly, objecting, etc.--requiring extensive motions and running to the court.


Okay, make that "extensive" discovery generally favors plaintiffs. (Howard: I thought that was your original point.)


I'm inclined to agree with Steve L. - there is no settled answer.

I'll give an example - a patent troll case, or alternately an "ambush," which are to a lesser or greater degree nuisance suits (greater description below.) They rely on their persistence and existence to extract settlements. So there delay favours the plaintiff - but I'll add, IMHO the main problem in the delay is the Judge, not the counsel - Judge's that fail to hold the other party's "feet to the fire"and make them substantiate aspects of their case.

"Nuisance Suit, Nuisance Value

Lawsuit brought by a plaintiff who may not want to bring the suit to trial, but rather is willing to settle it for “nuisance value.” The amount of nuisance value can vary. At the low end it may simply seek a settlement for a number less than the cost of litigating the suit, both in terms of legal fees and business disruption.

At the high end, a nuisance suit may be seeking to take advantage of a timing problem to obtain an inflated settlement. For example, it may have been brought against a technology company immediately pre-IPO, or just before a major transaction (e.g., a merger, rights offering or major borrowing) and seek a settlement that reflects the likely cost of a delayed transaction (or increased interest rate or lower issue price), rather than a fair settlement value. Indeed, one problem with this type of ambush is that it is often not practicable to litigate liability (i.e., whether the claim is even legally valid), so that the underlying legal case might under other circumstances be a ‘loser’ in court. This type of claim is often pejoratively analogised to a street robbery and called a ‘stick-up,’ ‘hold-up,’ ‘mugging’ or ‘ambush.’

Use of the strategy is not limited to trolls – the licensing departments of certain very large technology companies are notorious for bringing this type of carefully timed assertion. A taste for ambush claims tends over time to lower the quality of the assertion analysis those who use this tactic engage in – use of ‘the gloss‘ becomes common, as well as self delusion about the quality of assertion claim charts. A nuisance suit, especially one where the underlying claim is facially invalid, is potentially abuse of process."

Howard Wasserman

That probably was Roberts' point (and the point generally of those who seek to constrain discovery)--I don't buy it.



If you have been in a troll case what you usually find is that their responsive documents consist of an assignment, a couple of doodles on a napkin and maybe the company filings. They make a point of seeking millions of pages of discovery, filing complaints about metadata fields, demanding serial depositions, etc. most;y with respect to utter irrelevancies - this racks up discovery costs both in terms of the material and in terms of the arguments over their demands for really quite silly stuff - all intentional. All the while they are hinting at cheap settlements, and the judges are rolling their eyes and making "can't you get along" comments, while not paying any real attention to what is being demanded.

I litigate in environments where there is very limited discovery, or none at all - and that too has its major drawbacks. But getting to be on both sides of the question - exposed to abusive discovery demands designed to leverage a settlement, or faced with the battle to get even basic discovery in say a non-US cartel case - that is readily produced in US cases is educational. There is a balance between too much and too little - I think the US often goes too far, but other jurisdictions do not go far enough.

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