Some civil cases are more complex than others and benefit from direct, intensive judicial management. That’s where complex litigation departments come in: they allow the parties and courts to work together to find practical solutions to the difficult procedural and substantive issues in complex cases. Here’s advice on how to efficiently and effectively handle complex litigation cases from Hon. Richard A. Kramer (Ret.), who presided over cases in San Francisco Superior Court’s Complex Litigation Department until 2015.
California Rules of Court 3.400–3.403 and 3.751 govern the designation of “complex cases,” such as cases involving construction, securities, and environmental claims that involve many parties. Cal Rules of Ct 3.400(a). Complex cases are likely to include numerous pretrial motions, many witnesses, a substantial amount of documentary evidence, or a large number of parties. Cal Rules of Ct 3.400(b).
In an article he wrote for CEB, Judge Kramer identified five axioms to provide guidance to litigants in any complex litigation matter:
- “Complex Litigation” is not a verb. Lawyers often make the mistake of believing that complex cases require complex lawyering, i.e., everything is deemed worth fighting over. The judge’s mind-set is exactly the opposite: The judge strives to simplify, not complicate, the case with the goal of getting to the heart of the matter. This approach is often the best strategy for complex cases, which usually have a limited range of key matters on which the rest of the superstructure is built.
- Creativity is a virtue. To get to the heart of the case as easily as possible, litigants need to devise a strategy with two distinct components, both of which require creative thinking: (1) develop an analytical construct that allows the parties and the court to look at the case in a manner conducive to figuring out how best to simplify and resolve it, i.e., first resolve the issues that give the most bang for the litigation bucks needed to answer them; (2) choose the proper procedural tool to resolve the various issues, e.g., demurrer, summary judgment motion, bifurcated trial.
- Less is more. A lawyer should spend more time researching and writing, and thereby produce shorter briefs. The more complex your argument, the more important it is to be clear and concise. The object of legal writing is to persuade the judge, not to overwhelm him or her. A sharply focused brief is far more persuasive than a full exposition of every jurisprudential iteration of your issues. Further, don’t assume that the more times a point is expressed, the more likely it will be understood and accepted; if you have to repeat your arguments for them to be understood, you’re probably not thinking them through clearly.
- The Golden Rule works. Lawyers squabble and whine. Such personal foolishness is counterproductive to efficient case administration. More often than not, lawyer infighting only increases the costs of litigation. Not surprisingly, judges hate refereeing squabbling lawyers and can sometimes lose the focus of the argument in the din of strident advocacy. The “civil” in civil litigation should refer not just to the nature of the cases, but also to how the participants should behave toward each other.
- The invisible hand also works. Most complex cases have an economically rational resolution to them, which may or may not be achievable by a trial. Adam Smith hypothesized that rational business people will make rational economic decisions, i.e., the so-called “invisible hand.” Often, a complex lawsuit is the result of impediments to the invisible hand’s effectiveness, such as greed, fear, lack of information, and stupidity. Be mindful of this problem and work toward clearing whatever is blocking the invisible hand so that the litigants can reach an economically rational resolution to their conflict.
Learn how to efficiently and effectively handle complex litigation cases in the Superior Courts, from the perspectives of both the parties and the court, and explore the recent trends and developments in complex litigation matters in CEB’s program Complex Litigation: Practical Approaches to a Legal Labyrinth, available On Demand.
Other CEBblog™ posts you may find useful:
- Mastering the Art of Cross-Examination: Tips from a Judge
- A Brief Browse on Briefs: Writing Tips from a Judge (part 1)
- Should You Make the First Settlement Offer?
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