Originally published by Barry Barnett.
12+ years
The case of Comcast Corp. v. Behrend will likely end in 2016, but in its more than 12 years it has offered dozens of chances to persuade — or not.
Although we suffered a tough 5-4 defeat in the U.S. Supreme Court, class counsel persuaded judges often enough to secure $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 I think we also did a better job of earning the trust of the judges 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.
Basics
Two sets of ideas matter here.
First, in his Rhetoric of the 4th century B.C., Aristotle proposed three “appeals” for convincing people — appeal to logic (logos), appeal to emotion (pathos), and appeal to moral character (ethos). Although we learned in law school that logic defeats all else, Aristotle taught that logos pales beside pathos and that logos and pathos don’t come close to the persuasive power of ethos. The character — or trustworthiness — of the writer or speaker most.
Modern psychology also plays a role. It says that people tend to make “attribution” errors, by which they explain conduct of others in terms of the others’ character. But the attribution bias works in an uneven way. People will quickly believe you have bad character if they see you do even one mean thing (e.g., you strike a dog, take the last piece of candy, or hurl an insult at a homeless person), but they won’t conclude you have good character unless you do good things many times.
Combine the two, and you can see how a consistent record of doing things right will matter over the life of a 12-year lawsuit.
Steady as she goes
You can’t win a name for candor unless you use frankness over and over again. And counsel can’t do that if the lawyers come and go. Job one thus involves sticking with a case.
Class counsel had a far better record in that respect. Where on the class side the same law firms and many of the same lawyers stayed active in Comcast Corp. v. Behrend throughout, Comcast changed its lead counsel at least three times.
The lack of a steady presence on the defense side made for an approach that changed every couple of years. We did not have that problem, and not having it helped us project a more stable and consistent message.
No whining
If you lose a ruling, accept the loss with good grace. Try not to whine. Telling the court that it made a mistake rarely works (even if the court plainly did err), but it almost always rubs the object of your scorn he wrong way.
Early on in the case, Comcast often asked the district courts to reconsider decisions it did not agree with. That set a tone, and it eroded goodwill.
Stretch only if you must
Generally, you should not file any motion unless you feel highly confident you should win.
But sometime you don’t have a choice but to stretch for a ruling, as when you can’t afford to lose a key point.
If you do take the risk, you will expose yourself to loss, and — worse — the court may hold the stretching against you. You lower the chances of blowback if you haven’t gone out on limbs too often, don’t stretch too much this time, and do it only because the stakes warrant the gamble.
The one time I think we stretched in Comcast Corp. v. Behrend arose from a unique moment. Late one night at the end of a long day, the lawyers for the parties signed a one-page memo that set out peace terms.
Less than two weeks later, the U.S. Supreme Court granted review in the case. Comcast took the view that the memo did not bind it to settle. We took the other view on behalf of the class, both in the district court and in the Supreme Court.
The district court sided with Comcast, handing us a rare loss and mooting our request that the Supreme Court kick the case off its docket.
But I didn’t regret moving to enforce the deal. We had good support for our position. We also knew, as did the court and Comcast, that the granting of cert. implied that a majority of the justices to vacate the district court’s class cert. order. The circumstances justified the effort.
Make friends
I made a point of having good rapport with defense counsel. Instead of sending emails, I called them. We talked not just about the case but about our lives outside of law practice. We sometimes met for lunch or a drink.
All of that made the case more fun. It also avoided unnecessary misunderstandings and wasteful fights. I highly recommend it.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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