Federal judge criticized by Supreme Court Justice fires back

[Eugene]

Source: Reuters

Federal judge criticized by Supreme Court Justice fires back

NEW YORK Fri Dec 6, 2013 5:45pm EST

(Reuters) - A federal judge this week defended his custom of urging lead law firms in class actions to staff the lawsuits with women and minority lawyers, two weeks after Supreme Court Justice Samuel Alito took the unusual step of criticizing the practice.

The judicial dustup stems from the Supreme Court's decision on November 18 not to review a challenge to a class action settlement that resolved antitrust claims against Sirius XM Radio Inc.

Though it declined to hear the case, Alito wrote a six-page statement criticizing the practice of Judge Harold Baer, of U.S. District Court for the Southern District of New York, of encouraging firms that represent plaintiffs in class actions to assign lawyers that reflect the gender and racial makeup of the class.

Alito likened the practice to "court-approved discrimination" and said it might warrant further review by the high court.

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Read more: http://www.reuters.com/article/2013/12/06/us-federal-judge-idUSBRE9B510520131206

[Feral Child]

1. Good one, Judge Baer!

[bemildred]

2. Alito again shows his poor reasoning skills.

A piaintiff has every right to sympathetic representation. What would be discriminatory is to prevent that.

[liam_laddie]

3. Not even poor reasoning skills there...

...just the the ignorance of a cossetted elitist. And a liar! Re: confirmation hearings. Absolutely disgusting!

[bemildred]

4. Well, his argument doesn't stand up.

That he is a self-important prick has been obvious from day one, but that's the majority of the court these days.

[Igel]

5. But that's not the point.

The legal firms can assign who they want to the case. If it's a class action suit on behalf of women, there's nothing preventing them from assigning an all-female legal team to the class-action suit.

Neither Baer nor Alito touched that point in any way. Plaintiffs should most definitely not be barred from stacking their legal team in a way that makes an emotional or demographic argument with the jury.

The judge should have no say about it--it's up to the plaintiffs and their lawyers. Period. Which, I'd say, is more Alito's point in this case than suspected.



Apparently Baer has urged firms when asking for class-action status to make sure that if blacks are involved, they find black lawyers on their firms' staff and assign them to the "black" cases. If it's a class-action suit on behalf of women, then he's apparently urged the firms to make sure there are a lot of women on the legal team. Teams, like politicians, teachers, and doctors, must look like the people they serve. (Meaning that Obama obviously can't properly a white majority, and HRC could never properly represent men. No? Sometimes I wonder if people making that kind of argument really believe it, or if they only really believe older white men can never represent anybody properly but older white men. Anyway ...)

It's not about the plaintiff's choices. It's about the judge saying what he thinks the plaintiff's choices should be. Not even sure a judge should be advising the plaintiff. Smacks of "Here's how you can make it more likely for you to receive certification or even to win."

Another alternative is, "I think minorities and women are underrepresented at your firm, so I'm going to give you a chance to give lots of minorities and women chances to practice law, and make it more likely that you'll hire more."

Both sound really, um, corrupt. Judges at that point should stay neutral and not be biased by race/sex or against/in-favor-of specific firms. Baer doesn't sound neutral. He's 80, so I'm tempted to say he's suffering from the Strom affliction. His prefontal cortex as atrophied a bit and his executive functions are a wee impaired, so he's probably saying things out loud that tacitly influenced his legal opinions for years.

[bemildred]

6. Mr. Baer doesn't seem too worried about the argument you are making.

I tend to agree, urging firms to use class members in a class action suit does not actually equate to saying other lawyers cannot properly represent them, or must represent them, or that means it's more likely to get them certified, etc. It just means they are more likely to be enthusiastic about the project, hence may represent the plaintiff better. It is still up to the plaintiff and their law firm. I expect the defense as well might think it wise to get some class members on their team, but for different reasons.

[Jim Lane]

7. Class actions are different from other cases.

You write, "The judge should have no say about it--it's up to the plaintiffs and their lawyers. Period."

In most cases, yes. Similarly, the fee arrangements between litigants and their lawyers are generally up to the litigants.

In a class action, though, a few representative plaintiffs and their lawyers will take actions that bind all the members of the class, even though most of them have no say in the selection of counsel or the fee arrangement or any of the strategic decisions. Historically, the judge supervises class actions for that reason. The judge won't certify a class unless he or she is convinced that the proposed representative plaintiff(s) will fairly represent the entire class. Judge Baer is simply extending that principle to the lawyers, who, as a practical matter, usually have a lot more to say about what happens than do the nominal plaintiffs. It's already the norm for the judge to step into the lawyer-client relationship to the extent of reviewing (and sometimes reducing) the fee to be paid to the lawyers.

While it's legitimate for the judge to exercise some supervision over the law firms involved, it's much less clear to me that the demographic composition of the legal team will in fact have a significant impact on the progress of the case. Reasonable people could disagree with Judge Baer on that score. But it goes too far to say that the judge should have no say about the selection of lawyers.

[bemildred]

8. Thank you. I'm not a lawyer, but it seems to me the judge also has an interest, as a judge,

in seeing that the case is done well and the result stands up, and in these situations a failure to competently represent is one of the favored bases for appeal. Now, a few members of the class on the plaintiff's team is good prophylaxis against that sort of appeal.