Win Big on Appeal: The Plaintiff's Appellate Playbook, with Deepak Gupta

Welcome to Elawvate, the

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Ben Gideon and Rahul Ravipudi

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Hey, it's Ben.

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Welcome to the Elawvate

podcast. I'm Rahul Ravipudi.

And I'm Ben Gideon. Rahul,

so you're waiting on a jury.

Tell us what's going through your mind.

I'm super excited. I mean,

so this is on the social media addiction

cases and it's the first Bellwether

trial. We represent a

young girl, KGM, Kaley,

who got addicted to social

media starting with YouTube,

and then it carried on into Instagram

and suffers from body dysmorphia,

depressive disorder, social anxiety,

and a number of other issues.

And this is the first trial in the country

that started and it's gotten a lot of

press, which is fantastic

for really what the point is,

which is to get the message out there

and to really shine a light on the

defendant's conduct and really intentional

conduct in addicting and harming

kids.

So the jury's been deliberating

for three days now and there's been

questions and I'm feeling optimistic

that they're going to do the right thing.

Well, good luck.

We've all been following your trial and

it's really important case and we'll

have to circle back

after we get a verdict.

I'm really interested in hearing how

everything went from your perspective,

but I know it's a little premature.

It definitely is, but I already know

right now that we made a difference.

And even bringing the litigation and

the things that have ensued since,

the US Attorney General is showing a

warning that social media is harmful

for children.

The awareness and forcing these

companies to start putting in safety

controls, which they didn't do. And

none of them are effective, by the way.

These huge technology companies,

these trillion dollar businesses,

they know exactly how to not make things

effective and to make things incredibly

potent when they want to. And then I

don't know if you saw, but in Delaware,

the judge in a insurance coverage issue

for Meta found that there's no coverage

for their conduct in these cases

because their conduct was intentional in

designing their platforms to be addictive.

So there are so many different forums

which are really reaching the same

conclusion on how bad

these defendants are.

Well, we're thrilled to have on the

podcast today, Deepak Gupta. Deepak,

I met you for the first time in

Nashville and heard your talk there,

which was incredibly impressive.

I know you're also involved in

these social media cases, right?

Yeah. We're handling the Section 230,

the defense that tech companies

have been asserting on appeal.

And really just grateful that

you guys are having me on,

Ben and Rahul and Rahul,

especially with taking time in the

middle of a really important moment,

such cool litigation that

you guys are working on.

Well, it's just a moment

for me, but Deepak,

you do incredibly important

and impact large impact

issues every single day

in the work that you do.

So I hope for all of our listeners know,

but we're getting to spend some

time with what I think is the best

appellate lawyer in the country.

And so it's fantastic to

get to speak with you today.

It was awesome seeing you at the

Inner Circle meeting in Nashville.

And then we got to work on

the Uber stuff in Nevada.

So a lot of the work that you do,

Deepak really has been influential in

protecting consumer's rights and victims

of corporate negligence rights.

And so I'm just personally

grateful for all that you do.

Thank you so much. I mean, same back at

you. You guys are amazing trial lawyers.

I'm a fan of this podcast and

excited to talk to you guys.

So Deepak,

one of the things that's so interesting

about you is you sort of invented a job

and a career that, as far as

I know, didn't exist before.

Not many people do that. How did

you figure out this line? I mean,

you came through different public

interest and policy related legal jobs,

but how did you get to this point of

having this really impressive and quite

successful dominant plaintiff

side appellate practice,

specializing in Supreme Court

litigation of all things?

I certainly didn't plan to get into

the kind of work that I'm in now.

I think when I was

thinking about law school,

I knew I wanted to do public

interest law. Initially for me,

that meant civil rights

and civil liberties.

And then I went to a place called Public

Citizen that's a consumer advocacy

group. And they had a wealth of knowledge

on Supreme Court litigation for years.

They had been representing the little

guy in the Supreme Court and had

recognized this increasing

kind of advocacy imbalance.

And on the one side,

you have an increasingly specialized

Supreme Court and appellate bar

representing corporations.

That really started to pick up steam in

the 1980s when you had people from the

US Solicitor General's office go over

to corporate law firms and start these

practices. And in the 80s and

the 90s and into the aughts,

it became a real powerhouse on the other

side and started to really disadvantage

plaintiffs.

And plaintiffs,

there are all sorts of biases

that appellate courts may

have against plaintiffs

anyway. And then having

that kind of specialization,

it was clear to me in those early years

of my career at public citizen that

there was a problem, that

there was an imbalance.

And I was doing appeals with lawyers

around the country and started to

wonder,

shouldn't there be a kind of private

counterweight to the appellate bar on the

corporate side? So that idea was

kind of planted early, that seed,

but it took me a long time to figure out

how to do it and when to do it in the

right moment. So I argued a

case in the US Supreme Court,

AT&T versus Concepcion.

When Elizabeth Warren was starting the

Consumer Financial Protection Bureau,

I went there to be the first appellate

lawyer to help set up that bureau.

And it was kind of only after those

experiences that I thought, oh,

this is like kind of the right

time to hang out a shingle,

which is like a scary thing to do.

Scary enough for somebody to hang out a

shingle, but to hang out

a shingle, as you said,

in a practice area that

kind of didn't exist.

And I didn't know what the

economic model would work.

I really came to the point

where I realized the only

way to figure out whether

this is going to work is to do it.

I had by that point

talked to a lot of people.

I figured out that there were people

decades earlier who had realized there was

a problem,

had tried to set up a firm to do this

kind of thing and hadn't quite made it

work. And so I tried to figure out

what were the mistakes people had made,

what was the right way to do this. And

that was in 2012 that I started this.

And it's really been a dream come true.

I think I'm just really fortunate to have

a bunch of amazing colleagues who are

not just amazingly talented lawyers,

but are terrific human beings to do this

with. And that's one of the best things

about starting and running a firm is

just to work with people that share your

values,

care about each other and are engaged

in a common enterprise where we

are really a mission driven

firm. And I just, I don't know,

I have to pinch myself.

So if you summarize your firm and your

mission for everybody, what is it?

I would say that we are a Solicitor

General's office for the plaintiff's side.

So for those who don't know

federal government and the states,

they all have a solicitor general.

US Justice Department has

like a thousand lawyers.

They have a very small office that handles

the Supreme Court work and oversees

all of the appeals that

the federal government is

engaged in across the country.

And the defense bar has their

solicitor general's offices.

And so what we wanted to do and what

we have done over the past 14 years is

construct a counterweight

on the plaintiff's side for

the full range of issues

in plaintiff's practice, from personal

injury to antitrust, to civil rights,

class action. So substantively, we're

working on a really broad range of things,

but the mode of advocacy

is extremely specialized.

It's always briefing and argument and

working collaboratively with trial lawyers

across the country.

So we're in the US Supreme Court,

we are in state Supreme Courts,

we're defending large verdicts.

We are fighting court reform.

It's a broad range of activity,

but it all stems from that

kind of specialized mission.

Before we get into some of

your specific cases and issues,

I'm just interested in the difference

between the skillset required to be a

highly effective appellate

lawyer versus a trial lawyer.

It's something I've always

thought a lot about. I mean,

it strikes me you've a very nimble

mind. You're very quick on your feet.

You'd probably make a good trial lawyer,

but you've elected to go into a

different path of appellate law.

Do you think the skillsets are

the same? Are they different?

Are they overlapping?

What's the distinguishing quality

that makes a good appellate lawyer?

It's a great question. I do think

there are lots of overlapping skills.

And some of the time when I have done

trial-like activities, it's not my focus,

but I've realized, wow, this is fun

and I think I could be good at this.

And I wonder what would have happened

if I had decided to be a trial lawyer.

And I'm sure lots of great trial lawyers

have the same experience when they do

some appellate work. A lot of

what we do is very uncommon.

So we are telling stories.

We are distilling complex

problems down into simple

narratives, whether those narratives

are about the facts or about the law.

So there's a lot that's

in common. Of course,

the audience is fundamentally

different, right?

And I think a lot of

it boils down to that,

that kinds of people who maybe are

terrific at persuading a bunch of

randomly chosen people might be

different than people that are good at

persuading a bunch of randomly chosen

judges. But a lot of that just has to do

with focus.

You all have spent how many

hours honing your trial

skills and thinking about how to connect

with juries, how to select juries,

how to tell stories to them,

how to marshal the facts.

People who do what I do have spent

decades doing the same thing with how to

connect with groups of judges

who are deciding things,

not just about the particular case,

but about what the legal rule is going

to be for the whole country or a whole

state. And that ultimately ends up being,

even though the skillset they

may have a common nucleus,

ends up being a pretty

different enterprise.

And so ultimately they are

two different specializations.

That doesn't mean that people

can't be terrific at both.

I think it's pretty hard though.

Both of these things are pretty hard.

Trying cases to juries is pretty hard.

It takes a lot out of you and it takes a

lot of work to get good at it.

And I think the same thing with

arguing a case to the US Supreme Court.

I see that each time I do

it, I get a little better.

There are things that I

learned from the last time.

And so then the other thing is

like writing and research and

those kinds of skills and activities are

much more central to what we are doing.

Everyone likes to focus on the oral

argument because it's what you can see

and it's kind of dramatic,

but it's a lot less important relative

to the whole decision making process

compared to a trial.

So what happens at trial really is

critical to persuading the jury.

Whereas in an appeal, as

much as I like to think,

like I put a lot of work into

refining my oral arguments,

I think really it's what happens on the

page that is the most important. That's

a pretty big difference between

what you guys do and what I do.

What do you think on all of the issues

you've argued before the United States

Supreme Court?

Is there any example of where you

feel that your oral argument is what

moved the needle on the ultimate decision?

I think so. I mean, I think actually,

I'm the wrong person to ask because

I'm always going to want to think,

just like you guys,

I'm sure think the things that you say

to juries are what moves the needle and

not just like the facts of the case

that were there before you got there.

But I argued two cases in the US Supreme

Court last term where I felt like

nobody really knew what was

going to happen at argument.

And I persuaded the Supreme Court

to dismiss both of those cases after

argument, so like not

to decide them at all.

And there were both cases where

corporations had taken these issues to the

court. One was a securities fraud case.

One was about whether you need to

prove injury and class actions at the

certification stage. And we

kind of blew the cases up.

And I think it really wasn't

until argument where I was able to

say there's really nothing to decide

here that we knew what would happen. But

that's a very self-interested

thing for me to say.

I'm sure I'd like to think

that I move the needle.

Maybe the justices were inclined to

do that regardless. I don't think so,

but don't you have that same feeling?

You like to think that what you said to

the jury was the thing that really made

the difference, right? Well.

In our case, it always is.

And then you've got to figure out on

appeal how to support that crazy thing we

said, right?

Yeah. Well,

that's one of my favorite things to do

is to argue in support of jury verdicts.

I love doing those appeals because there

are always a case where somebody did

something bad, it made a

jury mad, somebody was hurt,

there's a lot at stake and

I get to tell the story.

This is like what we were talking

earlier, like I'm telling a story,

but it's a really different way

of telling the story, right?

I'm trying to distill down the things

that probably at some level got the jury

upset about the conduct,

but judges are not people that want to

feel like they are being persuaded based

on their emotions.

They're human beings and they have

emotions and those emotions and feelings

certainly influence their decisions,

but you can't write the appellate brief

in a way that seems like an overt appeal

to emotion,

right? So you're taking the story that

was told to the jury and distilling that

down in a really different way.

And I love working with trial

lawyers to do that on appeal.

So one of the distinguishing factors

that we have versus your arguments

in front of the justices is we don't

get any feedback from our jury as we're

making our arguments, right? So we do it

and then we hope that things resonate.

You get feedback,

but then you also kind of know your

audience a little bit better based on,

even if it's your first time showing up,

you've seen their prior

decisions and opinions,

and then if you're showing

up in the Supreme Court,

you've argued in front of those people

before. How much of that plays in?

So I mean, I imagine that even before

you show up in the Supreme Court, you go,

"Okay,

I think I know which justices I

need to persuade the most." Do you

craft your briefs with that in mind and

then prepare your oral argument with

that in mind?

Yeah, absolutely. I mean,

the great thing in the US Supreme

Court is you know your panel, right?

It's the same people we

know a lot about them.

If we're in a court of appeals

where there's a random selection,

you have to kind of brief the case for

the whole court for all the potential

permutations of judges you could get

and we try to imagine the most hostile

panel and try to figure out

how to persuade that panel.

But in the US Supreme Court, yeah,

we know so much about these people.

They have so many writings on the topic

and we can make pretty strong educated

guesses about where they may be

coming from. And then as you say,

you get real time feedback

and that's so critical.

It's not just like what they're

saying, it's body language, it's mood.

During the pandemic, I argued a case

in the US Supreme Court by phone,

and so I couldn't see the justices. That

really brought home to me how different

it was because you're just missing

so much feedback that you get

that's nonverbal feedback.

And you're really trying to read

the room and have a conversation,

not just with the person

that's asking you the question,

but with the entire bench.

I remember when you were speaking

in Nashville that I was very

interested in the way in which you were

thinking about the philosophy of the

individual justices,

particularly with more conservative

leaning judges on the US Supreme Court now

and trying to figure out how

to present plaintiff's issues

in a way that was resonate with them.

And you had some really

creative approaches to that.

How important is it in what you're

doing to think not just about the

analytical side of the argument

and the intellectual side,

but the kind of political philosophy

that the decision makers are coming from

and how have you managed?

Because now we do have more and more

Republican appointed judges that may be

somewhat hostile to plaintiff's

cases, generally speaking,

but you're finding a way to come up

with a way to present these issues that

resonate. How are you doing that?

Yeah. I mean, I think that's

crucially important, Ben.

And in some ways like my whole career,

I've come up in a conservative judiciary,

at least at the federal level.

You had the Rehnquist Court,

you've got the Roberts Court,

but now we have a 6'3" conservative US

Supreme Court. So it is malpractice.

If you're going into that court and not

thinking about what are the arguments

that I have that appeal to people who

are really committed to the conservative

legal movement, you have to

kind of make those arguments.

That's going to differ if

you're in a state Supreme Court.

It's really very specific to the forum.

And so we spend a lot of time really,

really thinking hard about that forum

when we're in various state courts around

the country. But in the US Supreme

Court, like I said, we know 6-3 court,

that doesn't mean that

they all march in lockstep,

but they have various commitments to

things like originalism, textualism,

their feelings about the role of the

civil justice system and the economy. And

we think really deeply about how we can

appeal to those commitments that they

have. And I think people are continuously

surprised about this because a lot of

people's perceptions of the US Supreme

Court are really largely shaped by a

really small number of cases that are

the cases that the media talks about.

So the really highly politicized cases,

there are only a few of them each term,

and they tend to break

down along predictable

ideological lines or the shadow

docket cases increasingly.

And those cases,

they're the least interesting cases

to me from an advocacy perspective.

We know how the movie

ends, it doesn't end well,

and I don't really want to be spending

a lot of our time on those cases,

and they're orthogonal to our mission.

Our mission is about protecting the

civil justice system and standing up for

consumers and workers.

And this is the crazy thing. We actually

have a pretty good shot in our cases in

this court if we're careful about the

arguments that we select and the cases

that we select and just one set of data

points over the last two terms in the

US Supreme Court,

our firm has had seven arguments

and we have a higher win

rate in those cases than any other

law firm that was in the court as

much as we were. So of the top

five firms in the US Supreme Court,

we had the highest win rate.

And that the other firms are all

large corporate law firms representing

corporations that have done

bad stuff. How do we do that?

We do it by appealing,

sometimes it's methodologically to

conservative commitments. So for example,

we have a series of cases about forced

arbitration where we're representing

workers and we're interpreting

about this exception for workers. And

it turns out if you go back and you take

the history really seriously and you

do a deep, deep dive into the history,

which is what one of my

colleagues, Jennifer Bennett,

has been doing in her cases, we can win.

And we've won a series of cases

unanimously for plaintiffs against forced

arbitration,

which I think most people think the rule

is just that the plaintiff always loses

in those cases in the Supreme Court.

And we've won cases about class

actions where we go back to,

might sound silly, but we go back to what

was the law in the late 18th century?

What was the most analogous

law surrounding class actions?

And there were cases about people on

ships who needed to collect a prize,

a bounty, and all of the people

on the ship were a class.

And we make arguments about how it

would have worked back in the late 18th

century,

and that appeals to someone like Justice

Gorsuch. We had a case about personal

jurisdiction in the Supreme

Court a few years ago,

and I think the prevailing view among

civil procedure professors and lawyers was

that plaintiffs always

lose in those cases.

And that was true going back to the 80s.

But the current justices are actually

open to reconceptualizing personal

jurisdiction and bringing back some common

sense. So I'm not like telling you-.

Is that the Ford Motor Company case?

And can you just explain to us what the

current status of personal jurisdiction

is because it's something that

we have to deal with a lot.

Yeah. We do a lot of work

on personal jurisdiction.

So back when I was in law school,

all of those cases were about basically

how the plaintiff gets kicked out of

court because they have

sued in the wrong forum.

And a lot of it is about forum shopping.

A lot of it is about narrowing

both specific jurisdiction,

the jurisdiction that is tethered related

to the claims or general jurisdiction,

jurisdiction that is conceptualized based

on the defendant being at home in the

jurisdiction. The Supreme Court was

cutting back on both for decades.

And then this Ford case comes along

and it was actually two cases,

one from Montana, one from Minnesota,

and both were pretty like garden

variety car accidents that produced

products liability

claims. And in each case,

the person bringing the case was injured

in the state in which they resided.

They had purchased the

cars where they lived,

but they were used cars.

They came from somewhere else.

And so from Ford's perspective, "Hey,

we didn't do anything specific

to this case in your state." We

designed the car in a different state,

we manufactured the car

in a different state,

we sold it to someone

in a different state.

So how can you say that our conduct

in the state caused your accident?

And if law were a computer program that

you just inputted an argument into,

and then it logically followed

all the prior precedent,

if you have just lawyer brain,

Ford's argument made a lot of sense.

It might have even been the

sort of logically correct

output of all of the prior

cases. But if that's the logically

correct output of all the prior cases,

then something is wrong with the

jurisprudence because that makes no sense.

If you talk to any person who's not a

lawyer and you say that the law is that

there's a car accident and

someone is hurt where they live,

and it's a big car company like Ford,

the idea that you can't sue them there,

even though they're selling tons of

the same car in that jurisdiction,

that just makes no sense. And so the

approach that we took in Ford was

basically,

first we had to tell the Supreme Court

to set aside all of its prior precedent

essentially,

to say that the prior precedent really

wasn't about this question and to try to

locate the analysis on the person's

residence and the site of injury,

which is not what the court had previously

done. A lot of it was just about,

and I think this is a big

difference between Supreme

Court advocacy and advocacy

in the lower courts. A lot of it

was about the practicalities of it,

whether it would make any sense. We

also emphasized state sovereignty.

We got most of the states,

the state attorneys general

to file a brief on our side,

including very conservative states, and

we really tried to politicize the issue.

We tried to show that it was bad for

American Main Street businesses. If you

can't sue a foreign corporation

based on this theory,

and then the American companies

get left holding the bag,

try to show that it harms states, it

harms businesses, it makes no sense.

It would multiply litigation because

you'd have to sue in multiple different

courts just for simple

garden variety product cases.

And we ended up winning that

case unanimously. I mean,

there's some separate writings by

Justice Alito and Justice Gorsuch,

but they all agreed with the result that

we were pitching and the court adopted

our test. And the test is really simple.

If a company is selling a product into

a state and that exact same product

injures someone,

then there's personal

jurisdiction regardless of

whether there's a direct causal

relationship. Now, since that

decision in the last few years,

courts have been disagreeing about

whether companies can evade personal

jurisdiction by placing

restrictions on uses or the

purchases of their products. So there

are a whole bunch of cases involving

exploding lithium ion batteries and

these Korean companies that sell the

batteries that are exploding

like in people's pockets.

It's very dangerous and people get

really bad burns. They're saying,

"We sell those batteries, but we

sell them for packaged products,

drills, laptops, cell phones,

whatever." We're not selling them for

people to buy them and vape with them,

and that's what's causing the injuries.

And so we just filed a circ petition

in the US Supreme Court this week about

that issue,

about whether or not it's a mistake to

draw an exception from Ford based on

restrictions that companies

place on their products.

No, it's really, I mean, this affects

a lot of our listeners, I'm sure,

so it's good to have a primer

on personal jurisdiction again.

And thank you for getting that result.

I think that's going to help

a lot of claimants. Well.

You know what's so cool about

it is to have a case like that,

it means it's going to be in

every civil procedure casebook.

So like every law student is reading a

case that you worked on and mirrors the

test. For an appellate law nerd, it

doesn't get much better than that.

So awesome. Okay.

So from the appellate law nerd

to the appellate no knowledge

baseline guy,

I want to take a couple of steps back

and maybe provide some inspiration to the

public here because as a layperson,

which is what I treat myself as

when it comes to the Supreme Court,

I feel like they are outcome generated.

And maybe it's because what I'm

reading is mostly media based.

And what I'm hearing from you is that

with your win rate and the way of framing

things, whether it's

originalism, textualism,

which I don't know the difference between,

can you tell everybody how

these six conservative justices

are not outcome generated and how any

issue can actually get framed in front of

them and they'll stick to whatever

their core beliefs or interpretation

processes are and you can win.

I didn't say any issue, Rael.

I'm going with any.

I'm kidding. I think that

for some issues, look,

for some issues that are

highly politicized and where

people are fighting the

culture wars, this is what

I was alluding to earlier.

I think the outcome may be for ordained.

And I think the best way to think about

this is that the Supreme Court is both a

political institution and a court.

And so sometimes for certain cases,

if you're on the vibes docket,

increasingly on the shadow docket,

the case may be more about the prior

commitments that the justices have and the

legal advocacy maybe plays less

of a role. But we as a firm,

we try to stay in what

we call the law docket.

And the law docket is the set of cases

at the US Supreme Court where the legal

materials are truly relevant

to the decisional process.

I mean, these justices,

they are also very talented lawyers.

They have really talented lawyers who are

law clerks and they are trying to do law.

And I think that that gets lost because

People are focusing on a small subset of

the cases. And so look, I

also, we have no choice.

This is the court that we have. We

have clients. These issues matter.

What the US Supreme Court decides about

the civil justice system and access to

the courts, it matters for our clients.

And so we have to make the arguments

that are most likely to persuade them.

And I think what our record shows

over the past few years is that it is

possible. If you make the legal

arguments, you take them seriously.

It also means not being

delusional. I mean,

we take a very defensive

posture to a lot of cases.

My favorite kind of brief to file in

the US Supreme Court is a brief opposing

assert petition,

try to keep cases out of the court and

preserve wins in the lower court. So I

don't want to suggest that it's the

greatest court in the world for plaintiffs

or for the little guy.

What I'm saying is that if you

are strategic and you take them

seriously as a court, you can

win. And we've shown that.

And I think you can extrapolate that

lesson to courts around the country where

there are judges that are to

varying degrees conservative or have

defense backgrounds.

You can make arguments that can appeal

to judges with different orientations.

And I think you guys know that because

you do it all the time when you're trying

cases.

You try cases sometimes

in pretty conservative

jurisdictions and you make your

arguments differently. I know you've

talked about that on the podcast, right?

Did you say the vibe docket? What's that?

The vibes docket. Yeah.

So I would say that there are

cases where the court really

is, and I think this is

a lamentable development.

I think the court should stay

out of these kinds of things,

but the court increasingly just

cannot resist jumping into the

cultural political controversies

of the day without allowing the

lower courts to kind of

flesh out the legal rules.

So they jump into debates

over bathrooms in schools

and just every hot button issue it seems

now gets to the Supreme Court faster

than it would have decades ago.

And I think that's a mistake.

I think the justices are not doing

themselves any favors when they do that

because it's bad for the public

perception of legitimacy of the court.

So on one of those vibes docket cases,

those are the ones that sound like they're

the politicized ones that may lead to

an outcome generated decision.

Have you seen a decision where you,

Deepak Gupta, looked at it and go, "Okay,

I could have moved this from

the vibe to the law and then the

outcome could have been different." And

is there like a real life example you

can talk to us about?

I mean,

I think I can give you one example that

it's where we actually did this in the

past year.

We just got a unanimous decision from

the US Supreme Court in a case where I

think if you take the public

perception that people have,

they would assume we would have lost.

Our clients are immigrants who are

detained in an ICE detention facility

run by a private contractor.

There's this company called Geo that runs

a lot of private detention facilities

for ICE. And our claims

are that the workers,

that the immigrants are being

forced to work in the facility,

do things like clean toilets

and they're not paid.

And so we were bringing claims and

there's litigation like this around the

country,

but the legal issue in the case

was whether or not this private

corporation running the detention facility

could get what they call derivative

sovereign immunity,

whether they could enjoy kind of the

sovereign immunity that ICE would have

because they're a private contractor

with ICE. And we had this sense that they

had gone too far with that argument

and that even the federal government

wouldn't agree with that

version of that argument.

We got the Trump administration

on our side in this case

and the court ruled

unanimously in our favor.

And I think that's just

a good example of like,

if you take a knee-jerk

reaction that, look,

there's no way with those clients and

that kind of case that we could prevail,

that does a disservice to the clients

because actually sometimes the law

matters is what I'm trying to say.

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Deepak, does your firm ever get

involved earlier in a case before the

verdict or decision on dispositive

motions in order to help the lawyers frame

the issues properly? Do you ever get

involved in drafting, for instance,

on dispositive motions and

in what settings would that

be appropriate to reach

out to you for something like that?

I think we want to be careful.

We're always trying to kind of jealously

guard our bandwidth just as a firm.

We want to make sure we're not ...

Because to do the kind of work we do well,

we have to really focus on the arguments,

just like you guys want

to focus on trials.

You don't want to extend

yourselves too much.

So the most common situation where we're

brought in in the trial court is like

immediately after a verdict. We

help with the post-trial motions.

And I was just in Boston on Friday

arguing post-trial motions on punitive

damages. We do that a lot.

I think it's less often,

but it does happen that we're brought in

sometimes even before the case is filed

to help shape the legal arguments

and then for dispositive motions.

There are people who will bring us in

knowing that there's a really serious

legal issue in the case, like for

example, forced arbitration or preemption,

something like that. And we maybe sort

of agree that we're going to do the

appeals even before there's a decision

and then we help shape the arguments.

So that happens. It's a

case by case kind of thing,

but I think I'd encourage people.

We're always happy to talk

to folks about their cases,

but I would say please don't bring your

appellate lawyer in after the post-trial

motions are decided. Try to

bring them in before that,

because that happens a lot.

And there's just so much that the

appellate lawyers can do to help the trial

lawyers shape what the

appeal is going to look like.

I'm a big believer in that.

We just used appellate counsel to

manage post-trial motions in my recent

verdict. And Rahul, I don't

think I may have mentioned it,

but we got the order just the other day

denying all their post-trial motions.

But it's just such a relief,

especially when some of the arguments

address conduct that you personally were

involved in.

It's hard to go back in front of the

same judge and argue about something the

judge may have been critical of.

And it's a nice weight off your shoulders

to outsource that duty to somebody

else and to have a

fresh perspective on it.

So I think that's

incredibly valuable advice.

What kind of things are you seeing that

repeat mistakes that you wish trial

lawyers had not made that make your

life more difficult when you get to the

appeal process?

It's really easy to kind of be

like this backseat driver or like

Monday morning quarterback is

really the way to think about it.

It's really easy for me to sit

in my office and say like, "Oh,

I would've done that differently."

I will say basically every appeal,

we have things we see in the

record where we're like, "Oh,

it's too bad that it was done this way.

It would've been better if it had

been done this way." But again,

it's like very easy to say that it's

very hard in the mix of things in the fog

of war. You're not going to

get every legal argument right.

But I think the most frustrating thing

is preservation problems when you really

haven't taken the time to properly

preserve the argument in a way that can be

raised on appeal.

And so we often have kind of

debates over waiver where we

are, we're saying, "Look,

if you look at this footnote

or this sentence here that

the trial lawyers really

did make the argument and the other

side's saying that they didn't really

develop it.

" One really specific thing,

and I think I mentioned to you

guys when we were in Nashville,

we see in punitive damages cases where

there's going to be a fight about the

ratio on appeal that plaintiff's lawyers

sometimes forget that you can put

in evidence about not just the actual

harm that your client suffered,

but the potential harm that could have

been suffered by other people in that

same position. And under the

US Supreme Court's case law,

that can be factored

into the ratio analysis.

And so what you can do is effectively

lower the ratio if you can point to that

evidence. And that's something that

we can't fix after the trial is over.

So it's just like a tip. If you're

going for big punitive damages,

try to think about putting

in evidence on that.

You can have an expert put in evidence

on that kind of thing and it can really

change the appeal.

What about talking about

this preservation issue for,

we've got lawyers of all different

skill levels and that listen to our

podcast because I know there's a lot

of lawyers who just feel uncomfortable

objecting in front of the jury and there's

some lawyers who want to object all

the time, which could potentially

alienate them from the jury or not.

What's an easy way for people

who are more reticent to

object or over object in front of the

jury to preserve these issues for their

appellate lawyer?

I mean, look,

this is one of the examples of like

why I think it's easy for the appellate

lawyer to say, "Oh, why

didn't you preserve that?

" But when you're really in trial, you

have competing considerations, right?

And I'm not in a position to say like

you were wrong to not make the objection,

that particular objection

in front of the jury.

Maybe you're right that it

would've alienated them,

but it doesn't mean that you can't

very quickly, like in a sidebar,

for example,

make clear on the record that

you have that concern, right?

That's like risk free in the sense that

you're not doing it in front of the

jury.

So I think it's just important to try to

do it as contemporaneously as possible

and as consistently as possible. And then

also, this is where it may be helpful.

And I think we're increasingly seeing

plaintiff's firms do this to have somebody

in your firm or somebody on your team,

you do the trial team whose job is to

kind of relentlessly focus on the errors

on the potential appeal. A lot of

plaintiff's firms have like a law person.

It doesn't have to be like the person

who's ultimately going to do your big high

stakes appeals,

but that person is really focused on

that and that allows you to not have to

focus on it as much.

What are you seeing on appeals

regarding damages caps?

Is there a trend in any generation?

Obviously it seems like corporations

are trying more and more to tilt

the playing field by changing

the rules of the game,

eliminating the jury's ability to

award damages or limiting that in some

way. Are we having any success

in challenging those things?

Yeah. I mean,

I think we're living through a kind

of second big wave of tort reform,

and we may be at the beginning of it.

I think there were a lot of

fights about this in the '90s.

If you think back to the '90s,

court reform was discussed

in presidential debates.

It was a big political topic.

When I teach law students now,

they don't know that.

They don't have the same perceptions of

the civil justices that those of us who

are a bit older do. And I think we're

seeing this ... I mean, this is Rahul,

this is, I think when you and I

first met was dealing with ...

It wasn't damages caps, it was an

attempt to cap attorney's fees,

but we worked together on this effort

in Nevada where Uber was proposing a

ballot initiative to cap contingency

fees in all civil cases in the state at

20%. It was pretty scary because

it's Uber, they have a lot of money.

This is a long fight for them.

And if they get it on the ballot,

it's hard to fight that. People don't

necessarily love lawyers and legal fees.

And we were able to feed that initiative.

We sued them and we brought it to

the Nevada Supreme Court and we won.

It was Deepak's brainchild though.

I mean, you found the issue,

you framed the issue,

and you won the issue in

the Nevada Supreme Court and

got that ballot initiative

stricken.

Well, I got a text message

from a lawyer and said,

"Can you do a constitutional challenge

to this ballot initiative?" And the short

answer I looked it up is, no, you

can't because it's not a law yet,

but there's this narrow window where

you can run into court and you can sue

based on the description

of the initiative. And we

did that really quickly.

We dropped everything and we got 50

declarations from lawyers across the

state and experts and we called the

case Uber sexual assault survivors for

legal accountability versus Uber.

So that was the caption of the case when

ended up in the Nevada Supreme Court.

They didn't like that very

much. And just we said,

"It can't be a coincidence that there's

this big multi-district litigation about

sexual assault against Uber and they're

trying to cut off the ability of

everyone to get into court,

including survivors." And then I

think we made legal arguments. We made

technical legal arguments.

I don't have to detail the technical

legal arguments about the problems with

their description,

but I think it was also

about a recognition that

the state judiciary there is

not going to like this big,

powerful company coming into the state

and trying to wreck the state's civil

justice system. And I think, Ben,

you asked about how are we doing with

damages caps and how are the courts

treating these tort reform issues?

I think it remains to be seen,

but the story from the '90s was that

the state Supreme Courts were pretty

hostile to a lot of these caps

and there are a lot of good wins,

including under state constitutional law.

And I'm optimistic we're starting to

see a wave of these challenges and we're

getting involved in somewhere where

I think the state Supreme Courts in

particular have an important role to play

in protecting the architecture of the

civil justice system,

but it's a pretty dangerous new

wave because these companies have,

they're willing to put a lot of money

into it. People do not understand the role

of contingency fees. People do not

understand how it affects them.

This is playing out in California now

that Uber has a ballot initiative there as

well. And pretty interesting

what happened in California.

Uber's lawyers at Kirkland and Ellis

filed this extraordinary motion before

Judge Breyer in the sexual

assault multi-district litigation.

And they asked Judge Breyer for

a prior restraint on speech.

They asked him to enjoin

Consumer Attorney of California's

political advertising about Uber's

sexual assault problem in this ballot

initiative fight. And furthermore,

they asked for discovery into

CAOC's political campaign,

which was just an incredible overreach.

And I think it just kind of

plays into our narrative about

what Uber is doing, which is that

they're trying to silence survivors,

and in this case,

silence the lawyers and the advocacy

group for the lawyers that are trying to

defend the civil justice system.

So we went in,

our firm came in to represent

consumer attorneys of California.

And I think actually, Rahul, this started,

I think you're the first person

I talked to about this, I think,

and we got Judge Breyer

to reject that request.

I think that's just like one skirmish

in a really big fight that's playing out

right now in California. I know you've

been really involved in that fight.

Yeah. And you touch upon

something and it resonates,

which is this wave of tort reform.

And we're experiencing firsthand is

one of the tips of the spear is clearly

Uber in this wave and what they

tried to do in Nevada and you helped

thwart Debuck. And now what

they're doing in California,

and they're starting to plant the seeds

all over the country with different

types of steps being taken

in New York and other places.

And so at least here in

California, we, and by we,

I mean the plaintiff trial bar

has been very galvanized in

trying to protect consumer

rights and have been raising a

significant amount of money so that we

can fight Uber and make sure that they

don't take away victim's rights,

take away access to the Seventh

Amendment and the right to a jury trial.

And whatever happens in California

has an impact across the country.

And so since we've got

a national base here,

I'm just calling out for help that any

lawyers across the country who can help

with their time financially,

defeat Uber, please reach out,

please let me know and then I can let

you know where you can provide that

support.

Yeah. It's such an important fight.

And the work you guys have been doing

to raise funds and awareness is so

crucially important. And I think

this is the beginning of a wave.

And it's these ballot

initiatives, it's new legislation.

They are bringing lawsuits against

lawyers and law firms, RICO cases.

There's public messaging. It's

happening all over the place.

And I do worry that the plaintiff's

bar, sometimes we are a bit fragmented.

And so we tend to see what's

happening in a particular state,

but it's difficult for us to see the

whole picture. And so I think it's really,

really crucial for people

to share information.

I've been talking about this at AAJ a

bunch to try to make sure that we're one

step ahead of them.

We should have you back on Deepak.

And Ben, if you think this is good,

we should do a whole segment

on eyes wide open on all of

the different attempts by

those in positions of power,

the big corporations on their tort

reform strategies and what they really

mean versus the dog whistling

that they're doing out there.

Yeah. And maybe like one other person,

I could suggest one or two

other people if you want,

like if you know Nora Angstrom

at Stanford Law School. Yeah.

But I think that's such

an important topic. Yeah.

Well, Deepak, this has been

really terrific. I'm so

glad you made time for us.

Just one final question,

because I'm sure many of our listeners

would be interested in knowing this.

What's the compensation arrangement

if you guys become involved in a case?

Do you share in the contingent

fee? Are you on an hourly rate?

Is some combination of that?

Yeah. I mean, I think this is one

of the things I had to figure out,

and we sort of made it up

as we went along. But yeah,

we are plaintiff's lawyers.

And so we like to be aligned,

not just in our values and position,

but also aligned in the structure of

compensation with the people that we're

working with. I think that's

the best way to do it.

I don't want anyone ever

thinking that I'm like,

the meter is running when they

call me to ask a question or try

to figure out a problem.

And so I think the hourly billing

model just kind of is a terrible idea

that the incentives are all wrong.

So we try to do contingency.

I think it's really easy if somebody

comes to us with a big jury verdict and

they want us to take it on.

It's very easy to say we'll do that on

contingency. I think it's more difficult

if a case is at its lowest point

and the case is worth zero and

lawyers always want to share

their contingency when the

case has been tossed out

and it's worth zero and we have to

figure out a model that makes sense.

So what we often do is a hybrid model

where they'll pay us something and then

we'll take some contingency and then

we have to do an assessment of the

likelihood of success, not just of the

appeal, but of the underlying case.

So we're flexible about

how we do that, but yeah,

we're plaintiff's lawyers and we like

to be aligned with our co-counsel.

We certainly have an

incredible track record.

I hope you're on contingency

in the Monsanto case with

Rick Friedman getting his

$1.6 billion restored. That

was a remarkable achievement.

It was a great fight. Yeah. And I mean,

some of the best trial

lawyers in the country,

I mean such a privilege to be able to

work with really fantastic trial lawyers

and also like kind of humbling. I mean,

it's a big deal when somebody

has won a landmark case,

it's an awesome responsibility to the

plaintiffs and to the trial council to

make sure that you protect that.

And in those cases, at one point,

the Intermediate Court of Appeals issued

a decision that would've blocked those

verdicts and we had to get it reinstated

in the Washington Supreme Court.

So the stakes were pretty high. I

can't tell you how relieved I was.

I'm sure Rick was equally

relieved or more relieved.

There's a friend of mine who

said, lawyers are either,

they're people who love

to win or hate to lose.

I think I might be in the hate to

lose category. So I mostly just,

I feel incredible relief when the

universe delivers the right result. Oh.

Well, thanks for joining us, Deepak.

If anybody wants to reach you,

what's the best way for them to do that?

They can email me. Our law firm website

is guptawessler.com. They can email,

they can call. And yeah, I like

to try to get back to people,

love to talk to trial lawyers and

people should reach out. Yeah.

Thank you.

Thanks for having me guys.

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