31. Goliath Hits Back, with Judge Nancy Gertner and Reuben Guttman

Retired federal judge Nancy Gertner and class action lawyer Reuben Guttman discuss the impact of Twombly and Iqbal, two SCOTUS decisions that precipitated critical changes in pleading, class certification, and expert standards that have affected a complaint’s capacity for making it past the motion-to-dismiss stage. In this wide-ranging interview, they talk about the challenges these decisions have on both judges and practitioners and how the landmark case of Brown v. Board might fare under post-Twiqbal standards. Topics4:02 Twombly/Iqbal’s impact on pleading standards7:17 Why process and procedure matter 10:16 Changes pleading standards12:43 Changes in class certifications14:11 Rise of multidistrict litigation16:20 Changes in expert standards, both criminal and civil21:47 Experts in the civil rights arena25:40 Applying today’s pleading and class certification standards to Brown v. Board 29:30 Rules that affect access to justice33:04 The benefit of a losing Supreme Court case36:04 Getting around these obstacles44:11 Judges, lawyers, and the legacy of discrimination cases48:35 Signoff questionQuote“I know from having been a criminal defense lawyer and civil rights lawyer and a judge, and now sort of a litigator as well, that what I may find ‘plausible’ may be not what a jury finds ‘plausible.’ That plausibility is, in fact, a contextual analysis—in context. And when I sat on the bench there were numbers of times, in fact, that my law clerk would say to me, ‘Judge, you can get rid of this case. You can get rid of this case. The allegations are not plausible.’ And I would turn to the law clerk and say, ‘To whom? To you? To me? To some of my male colleagues on the bench?’ So essentially, plausibility enabled the judges, who are not the most diverse group in the world, to make their own decisions about whether a case should proceed.” Judge Nancy Gertner

ResourcesJudge Nancy Gertner (bio) Reuben Guttman (bio)Representative Opinions of Justice Ruth Bader Ginsburg (book) From Conley to Twombly to Iqbal (article) Brown v. Board of Education complaint (PDF) Pretrial Advocacy (book)