- At the ABA Antitrust Spring Meeting’s “Views from the Bench” panel discussion, Judges Richard F. Boulware of the District of Nevada, Denise L. Cote of the Southern District of New York, Paul L. Friedman of the District of Columbia and Yvonne Gonzalez Rogers of the Northern District of California repeated a common desire: Judges wish antitrust lawyers and their experts would do a better job explaining the factual and legal issues in their cases.
- The panelists focused primarily on the importance of economic experts who could explain the issues clearly to a lay person.
- There are several other important methods for clearly explaining the economic, factual, and legal issues in an antitrust case. Parties should use their pleadings, briefs, experts, and in-court opportunities to explain complicated topics to the court in a clear and concise way, focus on the main issues, and provide citations to useful background literature, without clouding things with extraneous issues.
Panelists echoed a familiar tune at the 2023 ABA Antitrust Spring Meeting’s “Views from the Bench”: Judges wish antitrust lawyers and their expert witnesses would do a better job of explaining and narrowing down the factual and legal issues in their cases. The problems associated with the opacity of antitrust cases come up seemingly every time generalist judges speak about antitrust law. But while practitioners might roll their eyes at what sounds to them like a broken record, the fact is that judges continue to raise these issues because some members of the antitrust bar have not listened.
Antitrust cases are complicated. A former colleague once told an associate that antitrust law “is just two statutes.” Of course, there are actually many more than “just two statutes,” and each one is accompanied by a century of dense case law and complicated balancing tests. Antitrust law also involves a cacophony of strange legal, business, and economic terms – such as “tying arrangements,” “loyalty rebates,” “group boycotts,” “the demand curve,” and “market definition” – that, while common tongue for practitioners, are foreign and opaque to generalists. On top of this byzantine legal framework, antitrust cases require a deep understanding of often-complex industries, products, business arrangements, economic concepts, and consumer behaviors, and involve numerous complex relationships between manufacturers, distributors, retailers, consultants, purchasers (direct and indirect), and end consumers. Lawyers often forget that they learned the legal and factual issues of their cases through hundreds of hours of work – time that busy Article III judges do not have.
So what can antitrust practitioners do to better explain their cases to the bench so that we might finally hear a new song at our conferences? Below are just some of the effective techniques we have used in our practice, many of which were echoed by the panelists.
First, choose your experts carefully. Economic experts were the main topic of discussion among the panelists. The panelists explained that without a valid economic theory and an expert to back it up, the entire case falls apart. When picking an expert, we often look first to their academic and industry credentials as hallmarks of their reliability and credibility. But equally important is the expert’s ability to explain complicated issues in a clear way. Fancy degrees will not help you if the judge or jury cannot understand what your expert is saying. Indeed, the panelists agreed that producing an expert who explains things clearly was one of the most useful things a party can do for the court and jury. Moreover, practitioners and experts should not assume that the judge knows anything about their case or the relevant industry; as Judge Cote said at the Spring Meeting, they should explain issues “from the ground up.”
Second, use your papers to set out the legal and factual issues in a clear, logical, and concise manner. Although the panelists focused mostly on economic experts, in our experience parties should not wait until the expert stage of the case to start priming the court about economic and other issues in the case. A complaint or cross-complaint is a great opportunity to provide a written explanation of the factual background, challenged conduct, and general contours of the economic issues that a judge is likely to read the whole way through early in a case. Pleadings usually have no page limits or strict structural requirements, giving practitioners the space and leeway to explain who the relevant industry participants are, how they interact, what exact conduct within that industry is being challenged, and how that conduct resulted in harm – in a way best suited to each case. This freedom is not, however, an invitation to present extraneous facts. Practitioners need to strike a balance between thoroughly explaining the industry and background facts, while still helping the court understand and focus on the main issues and conduct being challenged. Moreover, because antitrust complaints often are so long, it may be useful to include an introduction that concisely identifies the challenged conduct at the start, followed by the most basic background information needed to understand the contours of the case. For example, in the Department of Justice’s (DOJ) October 20, 2020 Complaint against Google, it alleged in the first sentence that Google “unlawfully maintain[s] monopolies in the markets for general search services, search advertising, and general search text advertising in the United States through anticompetitive and exclusionary practices.” It then included thirteen short paragraphs explaining, very generally, what “general search services, search advertising, and general search text advertising” are and how Google had allegedly monopolized them.
Although parties should not (and often cannot because of page limitations) use every brief to restate all the facts in the case or explain concepts that are not relevant to the issue being briefed, they can still use briefs to educate the court. For example, it can be helpful for a brief’s introduction to include a sentence restating the core issue in the case. Although defense counsel might be reluctant to repeat a plaintiff’s allegations, the sheer volume of issues that arise in an antitrust case often make it necessary to remind the judge what the case is about. Briefs can also be used to explain economic and industry concepts that are relevant to the issue being briefed, and they can include citations to authoritative treatises on economics or antitrust law to provide useful background information.
Third, explain even simple concepts when necessary and define terms as you go. The DOJ’s Complaint against Google did many things right. For example, the DOJ explained essential factual terms such as “general search services” and that “general search engines are distributed primarily on mobile devices (smartphones and tablets) and computers (desktops and laptops)” – a fact some older audiences might not know. But it did not explain other terms it used in its introduction, such as “tying arrangements,” that may not be clear to a generalist. Seasoned practitioners need to understand that basic antitrust terms may be foreign to judges (and their clerks). Experts should do the same in their reports: An expert’s opinion is not useful to a judge if it is filled with jargon and assumptions that the expert has not defined or explained.
Fourth, use oral argument effectively and answer your judge’s questions. Parties often view oral argument as a way to reiterate their key themes and arguments already raised in their briefs. And that certainly can be helpful. But oral argument should primarily be used to narrow down things to the main issues actually in dispute and, most importantly, to answer the questions the judge has about those issues after reading your briefs. The panelists and numerous other judges have raised this issue over and over again: When a judge asks you a question (even a very difficult one), the very first thing you should do is listen to the question carefully, and the very next thing you should do is answer the question that was asked. Antitrust cases are hard enough for courts without parties actively fighting their questions; the more helpful you are to the court, the more likely the court is to trust you and to correctly deal with the issues.
Fifth, consider jointly asking for a tutorial or science day. Although these are most commonly used in patent and mass tort cases to explain complex technology or background pharmacological issues early in the case, Judge Rogers indicated that she would be open to tutorials in antitrust cases. Judges might appreciate and benefit from a joint request for a tutorial or science day shortly after a Rule 16 conference. There are several aspects of antitrust cases that could benefit from a day of (mostly) non-adversarial presentations to the court. For example, slide decks outlining how an industry’s supply chain works or how its major players interact could be extremely useful background information. Similarly, if the case involves the market for a particular product – and especially if the antitrust claims are intertwined with patents on those products, as they often are – it might be useful to have a day when the parties simply explain how the product (and possibly competing products) work. Even in cases that do not involve patents, understanding how a product works could help the court understand the parties’ future arguments about consumer behavior in the market for that product or whether other products are adequate substitutes. More controversially (but perhaps most helpful to the court), a tutorial or science day could include bringing in experts to explain complex economic concepts to the court. Whether a tutorial or science day is appropriate, however, will vary based on the circumstances of the case. If parties are fighting over, for example, market definition, it may be impossible to have a productive tutorial about the relevant products or the economics surrounding the industry without the hearing breaking down into arguments. Moreover, as the panelists themselves indicated, some judges would prefer to simply wait for Daubert briefing rather than hold a separate tutorial or science day.
Sixth, figure out what is not in dispute. As early as possible, find out what is not in dispute. For example, are certain aspects of the industry (e.g., how a particular piece of technology works in relation to other relevant technology) or the relationships among key players (e.g., X has a supply contract with Y and Z, which have contracts with each other to do A, B, and C) clear-cut? Figuring out these things can facilitate stipulations, discovery, and joint submissions throughout a case, enabling the parties to speak in unison on basic background information and reducing the number of legal and factual issues the court must parse. Determining what is not disputed can also help the parties determine whether a tutorial or science day is possible.
In sum, if practitioners want to hear something new from generalist judges who take time out of their days to speak to us about antitrust law at conferences and events, they first need to hear something new from us in the courtroom. Use your pleadings, briefs, experts, and in-court opportunities to explain complicated topics to the court in a clear and concise way and to refer the court to useful background materials that can make the judges’ jobs easier.
 See generally Lisa C. Wood, Trying Antitrust Cases Before Generalist Judges, 21 Antitrust 85 (2006).