If you want to serve in a leadership role in multidistrict litigation before the chief judge of the Southern District of Illinois, you should know he doesn’t take his appointment responsibilities lightly.
Chief Judge David R. Herndon will vet your application for lead counsel or the steering committee thoroughly and even call judges you’ve appeared before in other MDLs. If those judges don’t remember you or think you’ve overstated your work, don’t be surprised he crosses your name off his list.
That’s because Herndon said multidistrict litigation is “serious business” that not only requires a lot of work from the attorneys involved, but gives him the grave task of selecting attorneys on behalf of dozens to sometimes hundreds of plaintiffs.
Being involved in MDLs is not easy, but Herndon stressed his job isn’t to help attorneys build their resumes with a bullet boasting of a leadership role in one of his cases; it’s to ensure proceedings are efficient and fair.
Herndon provided some insights into how he runs MDLs Wednesday on a panel at the National Complex Litigation Conference in Chicago. Hosted by Perrin Conferences, the one-day event included discussions on a variety of issues and trends in civil litigation.
Herndon was joined on the panel, which focused on best practices and trends in multidistrict litigation, by U.S. Senior Judge John G. Heyburn II of the Western District of Kentucky and U.S. Judge J. Frederick Motz of the District of Maryland.
All three judges have handled MDLs. Herndon currently presides over multidistrict litigation in the Southern District of Illinois involving Pradaxa, a blood-thinning medication, and the Yasmin line of birth control products.
Heyburn and Motz also offered some tips from the perspective of the Judicial Panel on Multidistrict Litigation (JPML). Motz previously sat as a judge on the panel and Heyburn currently serves as chairman of the JPML, which determines whether litigation should be transferred for coordinated proceedings and selects judges to preside over the cases.
All three judges stressed how seriously they and their colleagues on the federal bench take the duty of handling MDLs. They also acknowledged that regardless of how experienced judges and attorneys are, problems are likely to arise, but lessons will be learned.
Herndon said when he starts multidistrict litigation proceedings, he says, “Well folks, buckle up your seatbelts” because it's not a quick process and requires diligence, hard work and cooperation in order to meet deadlines and move the matter forward.
Heyburn said most MDL judges would echo Herndon’s “buckle up your seatbelts” comment, but that such a sentiment would have been a rarity 20 years ago.
Back then, Heyburn said, most judges presiding over MDLs wanted to slow down the process and urged parties to settle. Now, judges are more likely to set strict schedules that allow litigation to proceed in a manner that doesn’t disturb related state court proceedings or potential negotiations.
“It’s a different world,” Heyburn said.
All three judges said in effort to help the process run more smoothly, they look to their colleagues’ experiences for guidance.
“There are a lot of things we can from each other,” Herndon said, explaining that he frequently looks at recent panel orders and rulings. “I do what I can to try to anticipate problems.”
Heyburn agreed and said attorneys play a role in the learning process too. He said he doesn’t think it would hurt for an attorney to tell a judge if they were involved in a MDL in which he or she believes the presiding judge did a good job.
“Tell them” about it and give judges all the help you can, he told attendants of the panel. “We are all looking to do it in a better way.”
When it comes to the task of selecting attorneys for leadership roles in MDLs, the judges came to a consensus that reputation and past work go a long way.
Motz said he is hesitant to appoint lawyers to serve as lead counsel or on the steering committee if he is unfamiliar with their work or has had a bad experience with them. On the flip side, however, he said he accepts nominations for these positions “to a fault” if he knows the lawyers and that he or she has handled MDLs in the past.
Herndon agreed with Motz’s points on familiarity and experience. He noted, however, that he is open to giving lawyers without past MDL experience a chance to serve in a position of some kind if he is familiar with them and they have proven their skills to him before.
And although he considers the lawyers’ list of recommendations for leadership positions and “gives it great weight,” Herndon said he has “never adopted an entire slate as a whole.”
For instance, Herndon said, he will reject a slate if a particular case focuses on the claims of one specific gender and a member of that gender is not represented via lead counsel or the steering committee.
He also said he would “not be the least bit hesitant” to reject a slate if it includes a lawyer he knows, but thinks would be counterproductive in the process.
Part of Herndon’s vetting process includes calling judges who presided over an MDL that an applicant says they were involved in. If that judge doesn’t remember the attorney, Herndon said he will probably scratch that person off his list of candidates.
Unless a judge is 90 years old with memory problems, Herndon said he or she “should remember them for heaven’s sake.”
Stressing how important it is to make good impressions on judges, Motz reminded attendants that just like lawyers all talk to each other about judges, “judges talk to one another too.”
On top of a solid reputation and previous experience, all three panelists said judges in MDLs chose lawyers for leadership positions who possess strong skills and a good work ethic. In the end, Herndon said he’s looking for “work horses, not window dressings.”
Heyburn said compared to 10 years ago, judges are much more conscious of their choices for lead counsel and steering committees. He said judges may approach considerations differently, but are looking for lawyers with the characteristics Herndon described.
The trio of judges also said that attorneys in leadership roles must possess a willingness and desire to work with others as coordination with state courts can come into play.
Coordinating with state courts is a “huge component” of multidistrict litigation that is a big responsibility and is often critical to the case’s success, Heyburn said.
In the past, Heyburn said some federal judges may have just wanted to take over the litigation and that state court judges weren’t necessarily thrilled about losing their role in the matter just because it became part of a MDL.
That dynamic, however, has changed, Heyburn said, explaining that MDLs may be a national issue, but also deal with federal and state problems. Over time, he said, coordinating with state courts will only help these cases.
Once attorneys are selected to leadership roles in a MDL, the judges said they should focus on the issues, instead of each other.
Herndon cautioned attorneys from filing briefs in which they attack opposing counsel, saying it is distracting and “tends to turn me off.”
“I don’t like that,” he said. “I think more about the adjectives used than the intellectual arguments.”
Heyburn and Motz also offered attendants of the panel a few pieces of advice on how to approach the JPML.
When making arguments before the panel, Heyburn told attorneys fighting over a request to create a MDL to simply explain the advantages to centralization or how it would make trying the case more difficult.
In situations where the issue is over where the litigation should be transferred to, Heyburn the “old arguments” over travel and where documents are located don’t have too much weight in the panel’s decision.
He said the JMPL is looking to transfer litigation to a place that has a relation to the litigation and a good judge so attorneys should just focus on those aspects.
A lot of cases before the panel could go anywhere, he said, adding that having a consensus always helps because the panel wants its process to be transparent and fair to both sides.
Motz said while he’s been off the JPML for a while, one of the arguments he never understood was when attorneys gave statistics about the caseload of a court being proposed as a MDL venue.
He said the panel is not transferring multidistrict litigation to a court and is sending it to a judge so the statistics of a court’s caseload “doesn’t tell me anything.”
Heyburn agreed and said that argument is "pretty much irrelevant."
The MDL panel was moderated by Denver attorney Eric R. Olson of Bartlit Beck Herman Palenchar & Scott LLP.
Olson's colleague, Adam L. Hoeflich in Chicago, served as a conference chair, along with Elizabeth J. Cabraser of Lieff Cabraser Heimann & Bernstein LLP in California and Silvio J. DeCarli, associate general counsel and chief litigation counsel of E.I. du Pont de Nemours & Co. in Delaware.