31. Goliath Hits Back, with Judge Nancy Gertner and Reuben Guttman

06/14/22 • 51 min

Retired federal judge Nancy Gertner and class action lawyer Reuben Guttman discuss the impact of Twombly and Iqbal, two SCOTUS decisions that precipitated critical changes in pleading, class certification, and expert standards that have affected a complaint’s capacity for making it past the motion-to-dismiss stage. In this wide-ranging interview, they talk about the challenges these decisions have on both judges and practitioners and how the landmark case of Brown v. Board might fare under post-Twiqbal standards.
Topics
4:02 Twombly/Iqbal’s impact on pleading standards
7:17 Why process and procedure matter
10:16 Changes pleading standards
12:43 Changes in class certifications
14:11 Rise of multidistrict litigation
16:20 Changes in expert standards, both criminal and civil
21:47 Experts in the civil rights arena
25:40 Applying today’s pleading and class certification standards to Brown v. Board
29:30 Rules that affect access to justice
33:04 The benefit of a losing Supreme Court case
36:04 Getting around these obstacles
44:11 Judges, lawyers, and the legacy of discrimination cases
48:35 Signoff question
Quote
“I know from having been a criminal defense lawyer and civil rights lawyer and a judge, and now sort of a litigator as well, that what I may find ‘plausible’ may be not what a jury finds ‘plausible.’ That plausibility is, in fact, a contextual analysis—in context. And when I sat on the bench there were numbers of times, in fact, that my law clerk would say to me, ‘Judge, you can get rid of this case. You can get rid of this case. The allegations are not plausible.’ And I would turn to the law clerk and say, ‘To whom? To you? To me? To some of my male colleagues on the bench?’ So essentially, plausibility enabled the judges, who are not the most diverse group in the world, to make their own decisions about whether a case should proceed.” Judge Nancy Gertner

Resources
Judge Nancy Gertner (bio)
Reuben Guttman (bio)
Representative Opinions of Justice Ruth Bader Ginsburg (book)
From Conley to Twombly to Iqbal (article)
Brown v. Board of Education complaint (PDF)
Pretrial Advocacy (book)

Previous Episode

30. Your Courtroom Comeback, with Carol Sowers

As social distancing and K95s finally become visible in the rearview mirror, communications expert Carol Sowers returns to the podcast to coach listeners through the yips of post-lockdown performance anxiety and rusty face-to-face social skills, and to discuss the remote advocacy habits we created that are worth keeping and refining. She also touches on a few subtle ways lawyers inadvertently undermine their authenticity and credibility.

Topics

2:57 Staring down the yips

9:46 Our best work adaptations and habits

14:20 Court activities that might remain remote

17:20 Framing yourself

19:45 New rules for eye contact

22:02 Mumbling the play-by-play

24:00 Preparing for in-person presentations

28:22 Distractions and attention span

30:20 Practice, practice, practice

31:20 Virtual backgrounds

35:56 Signoff questions

Quote

“I know it’s so boring to hear communications specialists talk about practice. It’s what we all say, and what we all have said, and what we all will continue to say. But I think it’s even more vital now. If you’re not practicing, I think you’re doing yourself a disservice, and I think that you’re doing your case and your client a disservice.” Carol Sowers

Resources

NITA 1:1 Coaching (link)

Celebrating Carol Sowers’ Nearly 30 Years with KHQA (YouTube)

Taste: My Life Through Food, by Stanley Tucci (book)

The Dropout (Hulu)

Next Episode

32. The Tense Trio, with Judge Amy Hanley and Cheryl Brown Wattley

Kansas District Court Judge Amy Hanley is joined by UNT Dallas College of Law Professor Cheryl Brown Wattley for a lively discussion of “the tense trio”: objections, cross-examination, and impeachment. Find out what these elements of a trial have in common; why trial lawyers face so much pressure around them; how to overcome the challenges of the tense trio at trial; and what mentorship means to career development.

Topics
3:31 What is the “tense trio”?
3:56 What makes these parts of a trial so tense for lawyers
4:41 The pressure of objections
6:57 Tuning your ear for objections
8:59 When not to object
10:05 Learning the FRE
11:00 The pressure of cross
12:34 Cinematic moments 14:40 Preparation versus spur of the moment
17:35 Getting out of your own way on cross
22:56 Women and cross
28:34 Ending with a zinger
31:18 The pressure of impeachment
34:20 The 3 C’s of impeachment
36:01 When impeachment backfires
39:20 Common impeachment mistakes
41:05 Preventing rehabilitation
43:14 Mentorship
50:30 NITA Women in Trial

Quote

“I have discovered that there’s also a physical hurdle to cross-examination, in that tone and demeanor. And what I’m talking about there is that adrenaline rush that we get from confrontation, and if you’ve been in trial and you’ve done cross-examination, you know what I’m talking about. The blood is pumping, the energy is coursing through you, and I’ve heard communication specialists talk about this and how we really need to burn off some of that excess energy.” Judge Amy Hanley

“I think the other problem area [in impeachment] is oftentimes lawyers want the impeachment to work and they don’t read the second sentence. They don’t read the thing that the witness said either right after, or alternatively right before. So, you pull out that which seems to be a contradiction, but really, if you read the full paragraph, it’s the same explanation. You can’t just focus on the five words.” Cheryl Brown Wattley

Resources

Judge Amy Hanley (bio)
Cheryl Brown Wattley (bio)
NITA Women in Trial (program) (video)
Federal Rules of Evidence with Objections (book)
Harnessing Your Power on Cross-Examination (webcast)