Wal-Mart Has Idiots for Lawyers
Facing a class action of 1.6 million of its current and former female employees, where the company is accused of systematic discriminiation in pay against women, the company lawyers decided that the best defense on appeal was to trash the district judge who ruled against them in early procedural decisions.
Not a great move (from Daily Labor Report):
During the arguments, Judge Harry Pregerson criticized [Wal-Mart lawyer] Boutrous for briefs the judge said were "arrogant" and "offensive" in tone and terms to Jenkins, adding, "you slam a district judge." Pregerson suggested that the defense apologize to [Distict judge] Jenkins, who produced an 84-page decision that he said was "painstaking" in detail.
What is amazing is that Wal-Mart can't even keep their core arrogance and abusive behavior out of a court room. There are complicated issues in a class action like this one, but Wal-Mart didn't think a subtler set of arguments were apropriate.
If Wal-Mart has an achilles heel, it is this. They can spend massive money wooing allies and politicians with campaign cash, but their own arrogance creates new enemies so rapidly you wonder if there is enough cash in the world to keep up.
As best I can tell, the single sentence in Wal-Mart's 61-page brief that Judge Pregerson objected to was this one:
"The district court's order, albeit prolix, establishes that the court failed to engage in the 'rigorous analysis' mandated by [Gen. Tel. Co. of the Southwest v. Falcon 457 U.S. 147 (1982)] and Rule 23 by glossing over the widely divergent claims of the named plaintiffs, altering the substantive law, and trampling on Wal-Mart's due process rights instead of recognizing the impossibility and unfairness of litigating these claims in a single, massive class action."
Unless I'm missing something, I'm surprised that this would be considered outside the bounds of appellate argument. It criticizes the district court's judgment, to be sure, but examining the judgments of district courts is the entire point of federal appellate courts.
August 10, 2005 9:47 AM | Reply | Permalink
I don't know whether that's the only objectionable sentence or not, but saying that a lower court opinion "albeit prolix" "failed to engage in . . . rigorous analysis" and "trampl[ed]" on your rights is outside the bounds of normal appellate argument. The point is to criticize the decision on its merits, not to insult it.
August 10, 2005 10:54 AM | Reply | Permalink
And the point is that Wal-Mart comes in with so much baggage that it had all the more reason to step lightly in its rhetoric. And its lawyers couldn't resist the snideness.
Which goes to the point that Wal-Mart doesn't recognize that it's own economic power drives a backlash even when they think they are engaged in "normal" behavior.
August 10, 2005 11:14 AM | Reply | Permalink
Don't read too much into what Pregerson said, you would expect that from him. Wal-mart's lawyers would be more worried if the criticism came from a moderate or conservative judge. The technical aspects of the law here are a bit more nuanced than the article.
August 10, 2005 11:51 AM | Reply | Permalink
The class certification standard requires the district court to conduct a "rigorous analysis" (among other things). You can't argue the district court should be overturned without saying the district court did something wrong.
The point of "albeit prolix" is not to criticize the length of the district court's opinion, it's to say that the length of that opinion alone does not show the standard has been met.
The "trampling" language is, at worst, a little vivid but you do have to argue that your rights were impaired in some material way.
August 10, 2005 12:18 PM | Reply | Permalink
Remember the Microsoft anti-trust case? Microsoft completely pissed off Judge Penfield Jackson. Microsoft lawyers filed misleading briefs, were condescending in court, used WebTV as an example of a Windows competitor (Microsoft admitted it owned WebTV under cross), etc. etc. Their behavior pissed off Jackson so much that he showed his displeasure in court and out-- he even granted a TV interview before final judgment was entered.
Lo and behold, Microsoft won on appeal because the appelate judges thought Jackson had been too critical of microsoft during the trial, and was therefore biased!
August 10, 2005 4:10 PM | Reply | Permalink
I have to agree with some of the other comments criticizing the coverage. I listened to the oral argument and read the brief in question. Judge Pregerson made a mountain out of a molehill. I wouldn't have used "prolix", I would have used "lengthy", but I don't see it as being fair to characterize their brief as being "abusive." Arrogant? Maybe.
And for some to argue that WalMart should be especially careful is a slippery slope. No one should have to behave a certain way before a Court depending upon who they are....it's why the statue of justice that graces the front of the Supreme Court building in DC is blinded.
That said, I think the brief comes on strongly in a way it didn't need to. I've drafted more than a few briefs to the Ninth Circuit and often, my concern was whether the Court would direct enough attention to what I felt was the core issue. And not because the typical panel is dense in any way, it's just because they are tremendously busy. In this of all cases, that is not a worry. This decision is obviously one of the biggest to come before the Circuit in 2005, no special emphasis was required.
But the media reports of this issue blew it way out of proportion to the issues involved in the rest of the argument. Makes for a good story I know, but I think it was misguided.
August 10, 2005 6:37 PM | Reply | Permalink
Come on JC9, of course you have to act a certain way in court depending on who you are. You have professional jury consultants and legal strategists whose sole job is to advise clients on the proper way to act based on the particular jury or judge in a situation.
And arguments are pitched on appeal with the particular judges serving on the panel in mind. If Wal-Mart knew that Pregerson was on the panel, they were idiots to give him an opening to slam them.
Which was the original point.
August 11, 2005 5:47 AM | Reply | Permalink
NN-How to act before a jury is an entirely different matter. Judges are supposed to resist such efforts.
But, as for your larger point, Wal-Mart did not know Pregerson was on the panel before it submitted its brief. In the Ninth Circuit, one doesn't get that information until right before the actual oral argument.
Keep up the good work though - I enjoy your coverage.
August 11, 2005 9:09 AM | Reply | Permalink