Speaking at an annual class action/mass tort symposium held in New Orleans on Friday, a panel featuring a sitting federal judge and Duke Law School professor shed light on how judicial panels on Multi-District Litigation (MDL) go about deciding venues.
U.S. District Judge Eldon Fallon of the Eastern District of Louisiana, Professor Francis McGovern of Duke University and attorney Elizabeth Cabraser of San Francisco spoke at “Multi-District Litigation: A Practitioner’s Global Positioning Guide.”
Fallon, who presided over Chinese drywall and Vioxx MDLs, said that once a venue is named, it is imperative that lawyers on both sides learn to cooperate, especially ones seeking appointment to steering committees.
“That’s very, very difficult for the plaintiff bar,” Fallon, a former plaintiff lawyer, said.
Fallon said that problems between plaintiffs and defendants should be worked on proactively, with possible solutions taken to judges before asking for a ruling.
“It can be done efficiently with the help of the lawyers,” he said. “It’s about lawyers…judges keep them focused but lawyers do the work.”
McGovern, who is the Special Master overseeing the BP oil spill MDL, said the thought process in the MDL Panel’s decision making involves trying to apply “a neutral standard” in a “non-neutral environment.”
He said the seven judges that make up the panel are wary of deals made by groups of plaintiff or defense attorneys or both that wish to land MDLs in particular districts.
In the end, though, McGovern warned that all the coordination can fall apart when cases are settled and it comes time to split up the money between plaintiffs and their counsel.
“The greatest weakness about MDLs is that there are no rules about compensation,” he said.
Cabraser, a plaintiff lawyer in the Vioxx MDL, said her experiences in making arguments before the MDL Panel are vastly different from any other courtroom, starting with how fast she’s talking.
“You only get two minutes to make an argument, so those who speak more quickly are at an advantage,” she said.
She also said that the content of the arguments is different in that venue selection for MDLs depend largely on the selection of judges who are experienced, patient and, most importantly, have the time to take the cases.