How many trial lawyers sit on the U.S. Supreme Court?
How many trial lawyers sit on the U.S. Supreme Court?

In the last quarter-century and more, no current member of the Supreme Court tried a lawsuit of any kind to a judge or jury. Almost none of the justices has ever tried a civil case to verdict. And before their honors became appellate judges, only one of their number served as a full-time trial judge.

Does the justices’ nearly total lack of trial-lawyer chops matter? Has the almost utter absence of actual trial experience in fact degraded the quality of civil justice? And will confirming the nomination of a former trial lawyer like Neil Gorsuch make a difference?

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IMG_0295A question of numbers

Class actions can save courts and parties a lot of time and money. But what if the class includes just a few members? How much time and money will the class action device save then?

The Third Circuit grappled with that “numerosity” question in In re Modafinil Antitrust Litig., 837 F.3d 238 (3d Cir. 2016).

The answer it gave — that a class with 20+/- mostly big members may not pass the test — could reshape how courts handle antitrust cases worth billions of dollars.


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imageWe left off last Monday in the middle of something — the Seventh Circuit’s latest proof of its leadership in the law of class actions.

My talk of the Seventh Circuit surge followed a segment on The outsize influence of Justice Scalia.

Now let’s finish up with the surge before turning to the third and final reason class actions will rebound: Politics.
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12+ years

In its more than 12 years of life, the case of Comcast Corp. v. Behrend has offered dozens of chances for the lawyers to persuade — or not.

Although class counsel suffered a tough 5-4 defeat in the U.S. Supreme Court, we convinced judges often enough to eke out $35 million in cash, bill credits, and services for the Philadelphia-area class.

Class plaintiffs prevailed mostly because we had the better side of the issues. But we also did a better job of earning the trust of the decision-makers we appeared before — the district judges in Boston and Philadelphia, appellate judges on the First and Third Circuits, and even justices of the Supreme Court.

Let me give you a few reasons for my view.
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