In pro prospectu: report from IBA Vienna 2015

“If you can wrap your mind around the fact that the entity you are suing is never interested in justice – for either side – you might be able to better help your clients… resolve their disputes”

2015 December

Speed dating for lawyers. That was my first impression of the International Bar Association’s annual conference, held this year from October 4 to 9 in Vienna, owing to the intense networking that takes place during and between the hundreds of social events and educational sessions.

Before the conference officially kicked off, with an arena-filled opening ceremony followed by a dazzling welcome party that spilled through a historic Viennese concert hall, the IBA put on a motivational two-hour orientation session for first-time attendees to help them get the most out of the conference. Among the commandments meted out: “Thou shalt bring plenty of business cards.” Sure enough, by the end of that interactive session alone, I had nearly depleted my supply, pegging me as the newbie that I was. And so before the opening festivities got under way, I retreated to the business center of my hotel to spend a frantic hour with my few remaining cards and the copy machine, makeshifting poor quality business-card substitutes issued during the following days with an apology yet always received with a warm chuckle and a sympathetic nod.

Keeping perspective

I know. Why do you, a California plaintiff’s attorney, need to rub elbows with 6,000 lawyers (yes, that was the approximate attendance number) from around the world?

If you truly believe that you have nothing to learn by talking with:

• A solicitor from London,
• A litigator from New York,
• A judge from Paris,
• A law-society chairman from Singapore,
• A legal scholar from Tokyo,
• An employment lawyer from Melbourne,
• A bar-association president from Hong Kong,
• An associate from Delhi,
• A managing partner from Helsinki,
• A finance lawyer from Liechtenstein,
• An MP from Moscow,
• A general counsel from Quebec,
• A lie-detection expert from Dublin,
• A prosecutor from Nigeria,
• A human rights attorney from Azerbaijan, or
• A mediator from Stockholm

Then I can only hope to match that cynicism by suggesting that you stop reading this article now.

To those reading on, I submit a different suggestion. If we never mix with those outside our immediate legal family, we progressively lose our perspective, sense of balance and notion of fairness. Those are not good traits to neglect if you’re in the business of standing before juries.

The IBA conference also teaches that if we neglect the outside world, we not only lose perspective but succumb to a false sense of security about the legal framework in which we operate. For example, the European Union, which is not exactly a radical federation of states whose ideology is completely removed from our own, has officially come out against contingent fees, class actions and punitive damages. Almost all EU member states, as well as nonmember states, consequently prohibit contingent fee arrangements and hold punitive damages against public policy. The word that one invariably encounters when these things are mentioned in the context of US litigation is “abusive.” That should be of concern to anyone whose livelihood depends in some part on these by-no-means-permanent features of our legal system.

Time and time again, I left highly intelligent legal-education sessions in Vienna with the unavoidable impression that many thoughtful individuals outside the US consider our civil justice system an unruly Wild West. The predominant sentiment seemed to be that at the very least our system should be contained within our borders, and at best it would be brought in line with the rest of the civilized world. The worrisome part is that these people were not neoconservative tort reformers but intellectual, politically progressive thinkers, including scholars, lawmakers and litigators. Many of them have studied, or even authored treatises on, our legal system in contrast to others. Such people occupy positions of potential fundamental influence that can and does find its way across oceans.

Litigation as dispute resolution

At a cocktail party held at a tony art museum by a Kievan law firm, I was in speed-date mode and approached an attorney whose badge indicated that she was from Cyprus. I asked if she practiced a specific area of law (many lawyers outside the US practice multiple if not all areas of law owing to the lower demand and the smaller marketplace), and she answered, “Dispute resolution.” I assumed she was a mediator or perhaps an arbitrator. It turned out that she was a civil litigator whose practice differed not so much from my own in that she occasionally found herself opposing relatively powerful corporations. Yet she identified herself as a resolver of disputes since from her perspective the means of resolution – negotiation, mediation, arbitration, trial – are secondary to the primary end. I found the humility and the modesty – not to mention the Greek-like rhetorical accuracy – worthy of reflection.

The IBA is composed of numerous committees falling under the auspices of large general sections such as Corporate Law, Financial Services, Criminal Law, Intellectual Property and the like. Yet the committees of most interest to consumer attorneys – Litigation, Consumer Litigation, Negligence and Damages, Mediation, and Arbitration – indeed fall under the Dispute Resolution Section. And while sessions put on by committees in the Human Rights Section, for example, concentrated on ideals such as equality and justice, those by the Dispute Resolution Section committees tended to forego conversations about justice. They focused more on making disputes disappear.

Of course as consumer attorneys, our passion for righting wrongs and achieving justice fuels our drive, but we also want to make our clients’ problems vanish. We just hope to enhance the public welfare, whenever possible, along the way. So while we relish playing stalwart warrior, we might take equal pride in our undeniable role as noble resolver of disputes.

Fiat justitia (or not)

One morning during the conference, I attended a Consumer Litigation panel comprised entirely of in-house general counsel for various large corporations. Initially chagrined, I grew thankful for the opportunity to glean the decision-making process within large corporations dealing with consumer litigation. All six general counsel, from places as diverse as Canada, Germany and Singapore and involved in industries from automotive to construction to financial services, agreed that achieving justice, no matter how righteous they consider their position in a particular litigation, is not a goal for them or their companies. In resolving disputes, they valued “competence” and “fairness” (of the resolution process, no matter what form it takes) more than justice.

For consumer attorneys, this is a valuable insight. It is one reason why we seem to travel in different solar systems from our defense-attorney brethren: we are searching for different destinations. If you can wrap your mind around the fact that the entity you are suing is never interested in justice – for either side – you might be able to better help your clients and more effectively resolve their disputes.

The quite common civil law

The insights from the sessions came daily. At a Litigation Committee panel on best practices for gathering evidence, I glimpsed a spirited (and one would think, age-old) debate between practitioners of civil law (originating from Roman law and reliant almost exclusively on codes) and common law (evolved in England and based largely on case law).

The civil-law litigators regarded common-law discovery rules, especially those in the US, as abusive (that word again) and as fostering resource-wasting fishing expeditions. The common-law lawyers were aghast that their civil-law counterparts had no obligation to produce evidence that is adverse to their own case. In fact, in civil law, pre-trial discovery as we know it does not exist at all: The judge generally collects whatever evidence he deems necessary to substantiate only the factual claims of the pleadings. As for luxuries like witness preparation – forget about it.

Such differences in legal thinking and legal systems manifested dramatically in a Negligence and Damages Committee session that comprised a three-hour mock mediation to resolve damages claims stemming from a fictional fatal passenger airline crash. Owing to preliminary rulings by the “judge” in the case, each claimant could recover only what his home jurisdiction would legally allow. While it was mildly interesting to contemplate the small differences in the wrongful-death laws governing claimants from New York and Florida, it was shocking to witness the result for a claimant under Swedish civil law. I expected the US claimants to reach seven- and eight-figure settlements, and they did. But I was not prepared for the cool-headed expository of the Swedish defense counsel who elaborated clinically why her countryman claiming for the death of his wife and child would, under Swedish law, likely receive nothing.

Although we probably can rest easy that American common law won’t be cast aside for civil law any time soon, we shouldn’t ignore the mindset of proponents of civil law, and we have much to learn from its practitioners. When you are raised believing that there is a codified solution to everything, it produces an interesting legal mind. And civil law is, after all, the prevailing system in many of today’s leading soft-power countries – Canada, Brazil, Japan, Germany, France, Spain, Switzerland, Finland, the Baltic States and all of Scandinavia – whose major cities tend to top the list of the world’s most livable. This potentially makes these places, including their social and political institutions, future models. (This is not to mention the civil-law countries that exert traditional hard-power influence such as Russia, China, most of the CIS and most African nations.)

Voice of law

If the prevailing view in Europe and at the IBA is that US legal conventions such as pre-trial discovery, collective redress, contingent fees and punitive damages are abusive, part of the reason is that no one is around saying otherwise. In Vienna, I did my small part. I explained to as many people as would listen that punitive damages are not handed out by US courts like steins of beer at Oktoberfest but rather are permitted only in cases of intentional misconduct aimed at harming others and even then only by an elevated legal standard and additionally subject to strict post facto “constitutional” scrutiny.

In another instance, during an interactive session put on by the Insurance Committee, audience members were asked to respond to a series of bar-exam-like fact patterns. One of them involved the rescission of an insurance policy based on the policyholder’s misrepresentation on the insurance application. As this was an area I know well, I was able to bring to the attention of those in the room some of the sound public-policy arguments against insurance-policy rescissions. Wherever I spoke, my words were always warmly welcomed and respectfully taken. But still, that session as well as all the others could have benefited from more participation by California lawyers.

The US is greatly under-represented in the IBA. Perhaps this is a result of an island mentality that so far hasn’t hurt America and American advocates too much but almost certainly will as the world embraces a new economy and a new world order, complete with new thinking about laws and regulations. I was an IBA member for five years before attending my first event, the Vienna 2015 annual conference. Before that, my involvement was limited to reading the organization’s excellent monthly magazine. I regret that now. Not only did the conference give me perspective on my own legal practice and place on this planet, it convinced me that we shouldn’t limit ourselves to thinking globally and acting locally, as the saying goes, but we must act globally too.

IBA Washington DC 2016

The IBA annual conference isn’t often held in the US, so next year’s in Washington DC (on September 18 to 23 – save the date), gives consumer attorneys a chance to exert influence by recommending our values to the international legal discourse. I encourage you to take part. The first thing to do is join the IBA, although membership is not required to attend the conference. (You just pay more as a nonmember.) The next step is to make contact with the committee or committees that interest you. The IBA is still looking to fill slots on educational panels for the 2016 conference, so now is the time to act. Last but not least, book your hotel room without delay and through the IBA to take advantage of conference rates. The entire city of Vienna was barren of hotel rooms during the week of the conference, and Washington DC is sure to follow suit.

For lawyers at the dawn of their careers, being a part of the IBA gives you an opportunity to shape the future on a larger-than-usual stage. For lawyers in their twilight, it offers a chance to add a global touch to your legacy. Not to mention the myriad new professional contacts and lifelong friends you will make. Don’t forget your business cards.