In This Issue

Did You Know?

Luther the Pig

People in the piney woods of East Texas, where I grew up, have a colorful way of getting their points across.  The saying that came to mind recently goes like this: Pigs get fat, hogs get slaughtered.

That one occurred to me during a trial in February.  The other side wanted to send the case to arbitration and argued that the judge should not strike down a class action ban as unconscionable but, if he did, he must also delete the arbitration clause.  You see, the company preferred to stay in court if the alternative was a class arbitration.

A clever but inconsistent position.  And I'm pleased to say that the other side won't be getting fat on it. 

Hot Lunch

If history gives any guide, current law students and judicial clerks will become the next generation of associates and partners at Susman Godfrey.  Twenty-eight of the firm's partners and 29 of the associates have never practiced at another firm.  And the partnership track for new associates in 2005 lasts only five years -- four with a one-year credit for federal or state supreme court clerkships. 

If you would like to learn more, please visit our Attorney Recruiting Info webpage and follow the links.  Topics include Firm Hiring Philosophy, Compensation, Work Load, Judicial Clerkships, Pro Bono Policy, Partnership Policy, Attorney Meetings, Lawyer Training and Continuing Education, and Your First Two Years at Susman Godfrey.  You may also contact our hiring partner, Erica Harris  -- or even Your Editor .

Arbitration Frustration 

Has arbitration become just another tool for the hard-ball litigator?  I ask the question because in the last two years I've spent a big chunk of my time litigating arbitrations in court.  And the litigation of arbitration issues has consumed at least as much blood and treasure as the merits.  Maybe we should start calling it arbigation.  Possibly lititration.  Arbitragation?

The federal Arbitration Act and similar state laws exist to encourage arbitration as a way to cut the cost of civil disputes and speed up the process of resolving them.  Less formality, greater expertise of the arbitrators, and simpler procedure, the solons who passed the laws believed, would help provide businesses and individuals high-quality justice on a budget.

Things haven't worked out that way.  Seldom does a commercial controversy start and finish in an arbitration.  If Party A demands arbitration, Party B files a lawsuit.  When Party C sues in court, Party D moves to compel arbitration.  Whoever loses in the trial court files an appeal or asks for a writ of mandamus.  Should the arbitration take a bad turn, somebody runs to the courthouse for a second opinion from the judge.  And the loser of the arbitration goes to court to set the award aside.

The one area of indisputable success in reducing litigation has won out not because it resolves disputes quickly and cheaply but because it makes them uneconomic.  Credit card providers, cable television companies, and software vendors now routinely use a double-whammy approach -- combine an arbitration clause with a class action ban and, voila, instant immunity.  Courts have sometimes upheld this technique, but class action lawyers are finding ways to defeat it.  See Did You Know? on the left panel.

I think arbitration can provide just outcomes less expensively than litigation in court, especially in tussles between businesses, but it won't work unless we find a way to reduce parallel proceedings.  My solution?  Eliminate routine appellate review of orders on motions to compel arbitration, prohibit courts from intruding on issues pending before the arbitrators, uphold arbitral awards except in cases of corrupt arbitrators, and bar prohibitions on class arbitrations.  We won't achieve arbitral nirvana, but we'll surely get a lot closer.

Barry Barnett, Editor

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Techniques for Expediting and Streamlining Commercial Litigation

We looked in the last issue of Barnett's Notes at pre-trial conferences, scheduling orders, and other case management orders as methods for slimming cases down before trial and therefore making them more expeditious and simpler.  This month, in the final installment from Techniques for Expediting and Streamlining Litigation, we end with what many commentators lament as a vanishing phenomenon -- the trial.

Copyright © 2005 Thomson * West.  All rights reserved.  Used with permission.

You can view the entire Chapter 55 from the ABA-and-West treatise on Business and Commercial Litigation in Federal Courts (2d ed. 2005 Robert L. Haig, editor) by visiting this page  and clicking on the Techniques for Expediting and Streamlining Litigation link.

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In-House Smorgasbord

In-house lawyers these days have an astonishing array of resources available to them.  The rise of magazines, websites, forums, and services catering to them reflects the growing importance, greater responsibilities, and increasing quality of the lawyers who choose to work in-house.  Even this newsletter aims to help them do their jobs better.

There follows a list of some favorite on-line resources for in-house counsel who manage commercial litigation:

• Inside Counsel  -- General-purpose monthly magazine for in-house lawyers.
• LexisOne -- Free, no-frills case law searches in LexisNexis databases for all state and federal appellate courts since 1997 plus other resources.
• FindLaw for Corporate Counsel  -- Thomson * West's more comprehensive answer to LexisOne.
• PACER Web Links  -- Webpage with links to all federal courts' Public Access to Court Electronic Records sites; requires account and password to view court filings on-line.
• Texas General Counsel Forum  -- TGCF sponsors conferences on CLE and best practices and provides links and other resources on-line.
• Corporate Counsel  -- An American Lawyer website featuring Corporate Counsel magazine, forms, and advice on law department management.
• InhouseBlog -- Res ipsa loquitur.
• Barnett's Notes on Commercial Litigation -- Bet you didn't see that coming.

Cyrus D. "Skip" Marter, General Counsel of Forest Oil Corp., Denver, and former Susman Godfrey partner.  Also an Aggie.

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Copyright © The New Yorker.  Used with permission.

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