Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs' Briefs, Its Impact on the Law, and the Market Failure it Reflects

• Publication year: 2013

Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs' Briefs, Its Impact on the Law, and the Market Failure It Reflects

Scott A. Moss

BAD BRIEFS, BAD LAW, BAD MARKETS: DOCUMENTING THE POOR QUALITY OF PLAINTIFFS' BRIEFS, ITS IMPACT ON THE LAW, AND THE MARKET FAILURE IT REFLECTS

Scott A. Moss^*

ABSTRACT

For a major field, employment discrimination suffers surprisingly low-quality plaintiffs' lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs' briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for win-loss rate, bad plaintiffs' briefs far more often yield decisions crediting debatable defenses. These findings are puzzling. In a major legal service market, how can clients persistently choose bad lawyers, lawyers persistently perform so poorly, and judicial and ethics authorities tolerate this situation? Answers include poor client information, ethics authorities' limited ability or will to discipline bad lawyers, and two troubling lawyer behaviors: (1) overoptimistically entering the field without realizing, until suffering losses, that it requires intensive research and writing; and (2) knowingly litigating on the cheap, rather than expending briefing effort to maximize case value, because contingency-paid lawyers may profitably run "mills" and live off quick, small settlements. A survey of the worst brief-writers' law firms hints that the problem may be a mix of the former(nonspecialists in over their heads) and the latter (knowingly litigating cheaply). This Article offers the

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following reforms that, while no cure-all for a problem stemming from stubborn market forces, could help: (1) expanding educational efforts, including law school experiential learning, bar resource-sharing, and bar exam reform; (2) enhancing client access to information on lawyers by liberalizing ethics rules restricting expertise claims and public access to court files; (3) broadening the supply of competent lawyers by liberalizing rules restricting the standing to sue of discrimination "testers" and ethics rules on corporations owning law firms; and (4) toughening ethics enforcement against the worst offenders, who almost all go unpunished now.

INTRODUCTION................................................................................................62

I. METHODOLOGY....................................................................................68

A. The "Same-Actor" Defense: A Case Study in Briefing Quality..........................................................................................68

1. The Same-Actor Defense: A Powerful Tool That Defeats Many Claims, but Faces Deep Intra-circuit Splits ................. 68

a. Extensive Caselaw Crediting the Defense.......................68
b. Criticism of the Defense, Including in the Circuits Crediting It......................................................................70

2. The Hypothesis: Given the Intra-circuit Split, Plaintiffs Have No Excuse for Omitting Caselaw Rejecting the Same-Actor Defense ............................................................... 75

B. Case Sample and Data Set: Same-Actor Briefings in Selected Districts ........................................................................................ 79

1. Case Sample: Selected Judicial Districts with a High Density of Cases, Quality Lawyers, and Legal Resources .....79
2. Data Set: Summary Judgment Briefs on the Same-Actor Defense ................................................................................... 80

II. FINDINGS..............................................................................................80

A. Finding #1: Most Employment Discrimination Plaintiffs' Briefs (73%) Lack Caselaw and Arguments Any Competent Brief Would Feature.....................................................................81

1. Incoherent or Ungrammatical Writing...................................82
2. Agreeing That Same-Actor "Strongly" Implies Nondiscrimination..................................................................84
3. No Legal Research—Just Boilerplate Lists of Unhelpful, Basic Cases ............................................................................ 85

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4. Relying on Long-Abrogated Caselaw Declaring Summary Judgment "Ordinarily Inappropriate" in Employment Discrimination Cases.............................................................87
5. Defaulting by Failing to Oppose Summary Judgment At All...........................................................................................89

B. Finding #2: Bad Brief-Writers Lose on Summary Judgment Over Twice as Often (86%) as Good Brief-Writers (42%)...........90
C. Finding #3: Bad Briefs Yield More Pro-defense Caselaw...........92

III. QUESTIONS POSED BY THE FINDINGS—AND POSSIBLY ANSWERS.......94

A. Bad Client Choices: Why Do Most Clients Hire Lawyers Who File Bad Briefs and Overwhelmingly Lose with Little Hope of Reaching Trial?............................................................................95
B. Bad Lawyer Choices: How Can So Many Lawyers Litigate Cases They Cannot Handle Competently Without Being Driven from the Market? .............................................................. 95

1. Ignorant Optimism: Employment Law as a Siren Song to the Unqualified.......................................................................96
2. Lazy Lawyering Pays: A Lawyer's Troubling Incentive for a Low-Effort "Settlement Mill" Strategy, Not Maximizing Case Value..............................................................................97
3. Who Are the Bad Brief-Writers? An Odd Mix Indicating That Lazy-Lawyering "Settlement Mills" Are Likely Not the Entire Problem ............................................................... 102

C. Bad Ethics Enforcement: Why Do the Bar and Judiciary Tolerate Widespread Incompetence in a Major Field of Law? .. 105

1. The Difficulty of Knowing not only What Plaintiffs' Counsel should Have Argued, but also What Errors Are Harmless ............................................................................... 105
2. Bureaucracy and Controversy Avoidance ............................ 106
3. Raising the Cost of Litigation as Harmful to the Plaintiff's Side—Even if the Rate of Bad Writing Is Similar on Both Sides ..................................................................................... 106

IV. POSSIBLE REDRESS.............................................................................107

A. The Caveats: A Degree of Judicial Blame and a Degree of Intractability ............................................................................... 107
B. Increasing Lawyer Training with Educational Efforts and Reforms ....................................................................................... 109

1. Supporting Bar Association Outreach.................................. 109

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2. Experiential Learning Targeting the Writing That Lawyers Do Badly ................................................................ 110
3. Making Substantive Employment Discrimination Law Simpler and a Bar Examination Topic................................. 113

C. Increasing Client Information About Lawyers by Liberalizing Ethics Rules on Marketing and Broadening Public Access to Litigation Filings ........................................................................ 114

1. Liberalizing Ethics Rules Restricting Lawyer Claims of Expertise ............................................................................... 114
2. Making Lawyers' Filings Free and More Searchable by Laypeople and Potential Reviewers ..................................... 115

D. Increasing Competent Lawyer Supply by Liberalizing Tester Standing Restrictions and Ethics Rules on Corporate Ownership of Law Practices ...................................................... 118

1. Liberalizing Tester Standing................................................ 118
2. Liberalizing Rules Barring Corporate Ownership of Law Practices ............................................................................... 119

E. Increasing Enforcement of "Competence" Ethics Rules Against the Worst Brief-Writers Litigating Cases Requiring Substantial Briefs ....................................................................... 120

CONCLUSION..................................................................................................124

"We Have Met the Enemy and He Is Us "— Walt Kelly¹

INTRODUCTION

Employment discrimination features surprisingly low-quality plaintiffs' lawyering for a field that reflects important federal policy² and, at six to ten percent of the federal docket, is one of the most common case types.³ This Article details a study showing that, on the summary judgment motions that

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dispose of employment cases with "almost Pavlovian . . . frequency,"⁴ the vast majority of plaintiffs' briefs omit available caselaw rebutting key defense arguments and lose at more than double the rate of competent briefs. These bad briefs cause broad harms: to the plaintiffs suffering poor representation, to the caselaw resulting from poorly opposed motions, and to the lawyers themselves—at least those unaware that their cases were doomed from the start. This finding raises a series of questions as to how clients persistently choose bad lawyers, lawyers persistently perform poorly, and judicial and ethics authorities tolerate this state of affairs.

Part I explains this Article's study. Part I.A describes how this Article uses the "same-actor" defense to test plaintiffs' briefing quality because the defense is the topic of dueling...