We say we want a revolution

It’s always a treat when the Panel allows us commoners a peek behind the scenes by discussing how it goes about its centralizing and transferring business.  Their spokesperson is invariably His High and Exalted Honor, Chairman Heyburn, who has gone on the record at least three times in recent–or at least recentish–months.

The publicity blitz was evidently preceded by Judge Heyburn’s “personal interviews” with dozens of attorneys “who practice before the Panel and in MDL dockets.”  That is news to imPaneled, as imPaneled was not among those dozens.  Perhaps the Panel has heard that imPaneled is a mite opinionated and something other than shy about sharing those opinions publicly.  Well, if that’s how they feel, the remainder of this post will not disappoint them.

The Panel has evidently observed that “it seems like there are more plaintiffs who see under certain circumstances that they can benefit from the centralization if they can be named to the lead counsel.”  Do tell!  And “counsels’ own stated reasons for favoring a particular location were sometimes surrogates for their desire for a favored judge or circuit.”  imPaneled commends Judge Heyburn for avoiding words like “all” and “always,” which might have been appropriate.

Counsels’ other beefs were in large part the result of having been saddled with unmotivated transferee judges.  As always, His Honor has recently insisted that a number of sensible factors dictate the Panel’s choice of a transferee judge.  But imPaneled has always suspected that judiciary politics play something of a role–and perhaps a major role–in this context, i.e., senior and well-connected judges have more to say about where cases go than do junior and poorly-connected judges.

Not that there’s anything wrong with that–so long as the transferee judge is willing and able to do justice relatively promptly and efficiently.  But too often–perhaps in cases that are generally unattractive to the judiciary–MDL proceedings land in front of judges who come up short as to justice, promptness and/or efficiency.

One would think that is a problem only for the litigants in those cases, which is a substantial problem in itself.  But as early as December of 2015, it may result in problems for plaintiffs in all cases.  imPaneled hears the clicks of browsers moving to other pages, on the premise that imPaneled has taken leave of its senses.  Bear with us.

imPaneled recently had the pleasure of participating in a public discussion of proposed amendments to the Federal Rules of Civil Procedure, which might substantially narrow the scope of discovery.  See, e.g., Proposed Rule 26 Committee Note (“The scope of discovery is changed in several ways.”).  That change was prompted by the well-organized campaign of those who produce the most discovery–defendants in complex litigation.  In fact, the moderator of the event cited a study reflecting that discovery becomes unmanageable only in a small minority of the most complex cases.

That revelation prompted imPaneled to query Judge Gene Pratter (E.D. Pa.)–who generally favors the changes–to the following effect:  In light of that study, and in light of the fact (based on imPaneled’s own experience) that diligent judges can readily control discovery even in the most complex cases, why is it necessary to rewrite the rules for all cases?  Judge Pratter’s response was most telling.  She said in essence that most judges and lawyers are not willing and able to control discovery in complex cases, and the rules have to be amended for everyone to account for those relative slackers.

Here’s a better idea.  The Panel should transfer cases only to judges who have proven their ability as to both the relevant substantive law and case management, or to unproven judges who have made a credible commitment to prove themselves capable of managing complex litigation.  If no such judge has a related case pending on their docket, the Panel should select someone new to the proceeding.  And if he or she has to move smaller cases to other judges’ dockets to accommodate a complex MDL case, so be it.  But no one should be denied prompt and efficient justice just because the Panel is set in its ways.  And plaintiffs of the world should not be denied discovery just because–as Judge Pratter substantially admits–certain judges and lawyers are not up to doing their jobs properly.

Update: imPaneled erroneously suggested in this post that amendments to the FRCP are coming in December of this year, which is not in fact the case.  But there is a public comment period forthcoming this year.  imPaneled encourages all of its readers to comment publicly.

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  1. A truly modest proposal | imPaneled
  2. Portland Panel Post-Game Prognostications | imPaneled

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  • About the blogmaster

    Bart Cohen is the principal of the Law Office of Bart D. Cohen, where he represents his clients in class actions and other complex litigation, and Winning Briefs, where he polishes, edits and drafts written work product for overextended lawyers.

    His unnatural appetites for rules and research of all kinds have made him an expert on proceedings before the Judicial Panel on Multidistrict Litigation. He feeds those appetites and chronicles the battles to land lead counsel appointments that are fought in part before the Panel on imPaneled.

    You can contact Bart here or connect with him here.

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