Notes from the Field: Views from the Bench about Antitrust Cases

“Know your audience” is an adage we hear in many different contexts. Marketing gurus preach that it is essential to know your customer. Public speaking teachers counsel that to be effective, you must learn everything you can about your audience. Ages ago, Chinese philosopher Sun Tzu spoke about the importance of knowing your enemy when going into battle. As litigators, we too must know our audience to advocate effectively for our clients, but when it comes to the judge, how do we do that? In rare instances, we might know the judge from prior experience appearing before her, or we might have worked with the judge before she went on the bench. We might also have colleagues who have appeared before her in other cases. While these encounters might give us some insight into the judge’s views generally, they will rarely give insights into the judge’s views about antitrust cases, which represent less than 1% of the cases handled by federal judges.  As a result, when we appear before a judge in an antitrust case, we often know little about what she thinks about antitrust. How fortunate are we then when judges agree to speak to us at the Spring Meeting to provide their views from the bench?

For those not lucky enough to attend the most recent Views from the Bench program at the ABA Section’s Spring Meeting, this column summarizes the remarks of the seven judges who spoke. This was a diverse panel of both appellate and trial judges from around the country, including the Honorable Amy J. St. Eve from the Seventh Circuit, The Honorable Denise Cote for the Southern District of New York, the Honorable Susan Illston, for the Northern District of California, the Honorable Philip Gutierrez for the Central District of California, the Honorable Daniel Crabtree, for the District of Kansas, and the Honorable Lindsey R. Vaala, Magistrate Judge for the Eastern District of Virginia.

The judges described antitrust cases as both very interesting and incredibly complex. They attributed the complexity to the court’s need to understand the relevant substantive legal concepts as well as the industry in which the dispute arises. As a result of this complexity, antitrust cases are resource-intensive. While as lawyers we recognize this and staff antitrust matters accordingly, the court’s resources are necessarily limited. Thus, while a courtroom might often be packed with lawyers handling a particular antitrust case, there is always just one judge. On rare occasions the judge might be able to assign a law clerk to work exclusively on an antitrust case or seek assistance from a magistrate or a special master, but even then, counsel greatly outnumber the judge and her team. Moreover, while we might spend most of our time on a large antitrust case, particularly when it is in an active stage, the court is handling hundreds of matters. Our antitrust case is never the only case before the court by a long shot. The judges asked that counsel keep these resource imbalances in mind.

The judges offered several tips in light of this resource constraint. Lawyers should keep disputes to a minimum and try to resolve discovery disputes among counsel. Counsel should try very hard not to bring “stupid disputes” to the court. Not only does this rob the court of its precious time to handle more important matters, but it was clear from the judges’ remarks that they remember the lawyers who bring needless disputes to the court, and not in a good way. The judges welcomed educational efforts by counsel, but cautioned that such efforts must be efficient, respectful, and practical.

The judges were uniformly complimentary of the antitrust bar. Nevertheless, the judges were also quick to point out that we should not let this go to our heads. They all emphasized the need to be respectful when addressing the court and never talk down to the court. As discussed later in this column, the judges had the same advice for experts who appear before the court in antitrust cases.

When addressing the court in briefs and at oral argument, be mindful that the court is not likely an antitrust expert. Judge Crabtree had the excellent suggestion that counsel have a non-antitrust lawyer read draft briefs to make sure that they are understandable to the court. Several of the judges encouraged counsel to avoid shop talk in briefs. As an example, the judges discouraged the use of antitrust acronyms, such as FRAND. The judges offered similar guidance on oral argument, encouraging practice sessions with lawyers who have no antitrust background. Above all else, the judges encouraged counsel to take a pragmatic approach and encourage questions from the court, so that counsel can more effectively meet the judge where she is in understanding the case.

The judges had a lively debate about discovery, with Judge Cote proclaiming that she loved discovery disputes, and the rest of the panel saying that they did not. Judge Cote explained that resolving discovery disputes gave her several unparalleled opportunities not available to her if she delegates resolution of discovery disputes to a magistrate. Importantly, she finds that handling discovery disputes allows her to help the parties reach resolution more quickly by making discovery more efficient and streamlined and, in some complex cases, phasing discovery by issue. Judge Cote also finds that she learns more about counsel by overseeing discovery disputes—who is taking unreasonable positions, who is prepared and measured, and who can be believed. Finally, resolving discovery disputes gives her an opportunity to learn the complex issues in the case. 

Most of the other judges on the panel explained that they had no love for discovery disputes. Many referred discovery disputes to a magistrate, or in some large cases, a special master. Once the discovery disputes are assigned elsewhere, the judges agreed that they did not discuss the case or the discovery disputes with the Magistrate, so for those judges, discovery disputes would not be a vehicle for teaching the court about the case. However, even those judges who did not handle discovery disputes, or discuss such matters with the magistrate, agreed that they would discuss counsel with the magistrate, particularly if counsel was dishonest, unnecessarily combative, or lacking in civility. Judge St. Eve counseled lawyers to avoid sending nasty emails and to vent privately when frustrated with the litigation process.

Several judges, while not enamored of discovery disputes, recognized the importance of managing the discovery process to assure efficiency. Judge Vaala noted the old adage that justice delayed is justice denied. She presides over a rocket docket, and antitrust cases are not exempt from its strictures, which include only a six-month period for discovery. In that court, discovery disputes are resolved on an expedited basis by magistrates, even in MDLs. Motions are filed on Friday and heard by the end of the following week. The initial Rule 16 Conference is held one week after the parties submit their discovery plan.

Judge Cote explained that the Southern District of New York has its own process to streamline discovery disputes. Counsel must meet and confer before bringing any dispute before the court. If the matter is not resolved, counsel must explain the dispute in a letter of no more than 2 pages, and the other side must respond quickly. Often the court can then resolve the issue without the need for briefing, or if necessary, hold a short call in which counsel can answer the court’s questions.

The judges discussed several different ways in which to use experts in antitrust proceedings. Several judges explained that they had used a “science day” or tutorial to help learn about the key issues in an antitrust case. Judge Crabtree has found science days moderately helpful, but he counseled advocates to make sure that the experts meet the judge at his level, and not talk down to him. Experts who thought it important to demonstrate that they were smarter than the judge were decidedly ineffective. On the other hand, an expert who can teach humbly and effectively will make a positive first impression on the court that will stay with the expert as the case proceeds. Judge Cote has also found science days helpful and uses them frequently in patent cases, as well as in antitrust matters.

Judge St. Eve has found that a science day or tutorial can be helpful if done early in the case, even before the motion to dismiss is heard. She also advised counsel to make sure that the tutorial is neutral, not adversarial. She also mentioned that science days raise several ancillary procedural questions, such as whether they should be transcribed.

Judge Cote focused on the qualities counsel should consider when selecting an expert. While an expert’s resume can be important, Judge Cote thought an expert’s ability to communicate complex issues to the court and jury was far more important. She has also seen many experts fail because they did not know either the record or the details underlying their report. She recommended that counsel select experts who will write their own report, rather than experts who rely on a big team or on counsel to do so.

None of these seven judges has used the hot tub method for presenting expert testimony, but they noted that many judges have used this tool. The judges explained that a hot tub can be used effectively at Daubert hearings and science days. Judge St. Eve noted that no Court of Appeals has issued a decision regarding the hot tub method yet, so its use at trial could raise appellate issues, particularly in a jury trial. However, using it at Daubert hearings or at a science day should not be controversial.

Judge Illston has not used the hot tub method yet, but she said she might at a science day. She has, however, asked that counsel present expert testimony back-to-back, and therefore out of order during a trial to help the jury comprehend the expert issues. Judge Gutierrez liked Judge Illston’s idea for presenting expert evidence but has not tried it himself.

The judges then discussed how the complexity of antitrust cases impacts juries. Judge Cote remarked that she has found juries almost always understand the liability issues well and get them right at trial. She also polled her colleagues informally in advance of the program, and they agreed with her assessment that juries almost always get liability right at trial but are sometimes less clear on damages. Judge Illston also agreed with this assessment. All of the judges praised the Section of Antitrust Law’s model jury instructions as helpful to juries. Judge Gutierrez also thought juries typically get it right at trial, and he observed that antitrust cases make for great jury cases because there are great stories in every antitrust case. He counseled lawyers to focus on the personalities and fun stories and less on the economic and expert issues.

Several of the judges provided tips on how to handle antitrust bench trials. Judge Cote has counsel present direct evidence by affidavit in bench trials and hears only cross-­examination live. Judge Illston also uses this technique, but after several years of experience, she shifted slightly to permit a 15-minute direct, so that her first impression of a witness is not on crossexamination.

The judges closed the program by speaking about how lawyers should approach talking to juries and the court. Judge St. Eve explained that she directs counsel to focus on a few issues at appellate argument. Several of the judges advised counsel to speak clearly and keep in mind that the audience is not full of antitrust specialists. Judge Gutierrez advised counsel not to be wedded to slide presentations at oral argument and instead to encourage questions from the bench—and to be nimble in responding to questions, even if they take you off your outline. Judge Illston encouraged counsel to use visual aids sparingly with the court or jury and not to let these aids distract from counsel and the witness.

The Views from the Bench program at the 2024 Spring Meeting was a great resource for litigators handling an antitrust case. Lawyers who follow the sage advice that the panel judges provided are bound to be successful and avoid the dreaded prospect of being a lawyer the judges remember as the one who talked down to them or wasted their time with stupid disputes.