When it comes to the law, I am conservative by nature, in the “if it ain’t broke, don’t fix it” meaning of the word. I am not speaking here of substantive legal rules, or case outcomes, and how to view them, but instead of the bread and butter elements of a litigator’s life, evidentiary rules, rules of civil procedure, pleading requirements, burdens of proof, and the like. If something of that nature is working well enough in the real world, in places like the courtroom where the rubber meets the road when it comes to any high minded thinking about legal issues, I tend to be skeptical of proposed changes, whether that concerns new rules of expert disclosure or a doctrinal shift in a particular exception to the rule barring hearsay testimony.
What brings this to mind at this moment is the issue of Iqbal, and the requirement imposed by it that plaintiffs plead facts that could actually support a cause of action, with the accompanying instruction – or at least implication – to federal judges to look, in essence, critically at the facts as pled to determine whether there is a viable case that should be allowed to proceed. Even though such a rule adds to the arsenal of the lawyer representing a corporate defendant, of which I am one 80-something percent of the time, I had always felt the prior rules of initial pleading worked well enough, and that there was probably no need to mess around with it, although I always recognized that it made dismissal at the initial stages something that could almost never occur except in the instance of a plaintiff either truly erring in pleadings or pleading a cause of action that simply doesn’t exist.
But I have come to believe, as I have continued to read the plaintiffs’ bar’s criticism of Iqbal – see here for instance – and the academic analysis of it – see here – that the rule makes sense, and that Iqbal represents a change for the better. As in most things in the law, my take is based on my own experiences in the litigation of cases, which I think is the best laboratory for analyzing any particular rule of law – theory is all well and good, but what happens when you actually put something into practice, and how it affects the litigants and the administration of cases, is what matters. Years before Iqbal – and even Twombly, for that matter – I litigated a copyright infringement action in which I represented one of the defendants, and the court dismissed the action on a 12(b)(6) motion on the thesis that the complaint showed that the statute of limitations should bar the claim because the plaintiff had constructive notice of the infringement at a much earlier date than the actual date of discovery pled in the complaint. Although we did not have the language of Iqbal and Twombly to use at that time to describe such an investigation into the factual merits of a complaint at such an early stage, the court was in essence Iqbal-ling the complaint, and dismissing the action. This being pre-Iqbal, the action was eventually reinstated on appeal, on the ground that the then applicable rules for pleading a cause of action were satisfied and the grounds for a dismissal at that stage – which were very high prior to Iqbal – had not been met; in essence, the appeals court concluded that a determination on that issue would have to be made at a later date, and could not be done on a motion to dismiss under the pre-Iqbal rules. Remanded, then, to the district court, the case then proceeded through discovery, extensive motion practice, and a trial, after which the jury found the exact same thing that the court had concluded in reviewing the complaint: that the plaintiff should be found to have had constructive notice of the infringement at such an early date that the statute of limitations barred the claim. Thus, pre-Iqbal, you had one appeal and a trial to reach the exact same conclusion that the judge could see just from the face of the complaint, right at the beginning of the case.
Iqbal, now, prevents this scenario, and allows the court to make an early ruling of that nature, and it would have been the right way to handle that case. Who benefits from allowing such a case to go forward? My own view is no one, except maybe the lawyers billing on the case. The defendant has to litigate for years to get to the same conclusion that could have been reached at the beginning, and which Iqbal now allows the court to reach early on, while the plaintiff spends years chasing a claim that a court can rightly determine early on will never come to fruition. Iqbal, in the hands of careful jurists, protects both sides of the v. from such a Quixotic quest.