Setting the Bar

Charting a New Course

John Coffee

With the help of some of the country’s foremost judges and attorneys, Professor John Coffee has devised a bold new approach for teaching law students the subtle art of litigation strategy.

By Peter Kiefer

Summer 2009

Does law school turn a blind eye to the critical decision-making in major litigation? Professor John C. Coffee Jr. has devised a new seminar with Justice Jack Jacobs of the Delaware Supreme Court that starts from the premise that civil procedure courses often suffer from a hindsight bias, leading students to assume the actual case outcome was inevitable and foreseeable. In fact, both sides make key decisions under high uncertainty, says Coffee, the Adolf A. Berle Professor of Law. To correct for this bias, his new seminar with Justice Jacobs brings into each class a judge and the litigators from major cases in the Delaware Chancery Court or the Southern District of New York and asks the students to read their briefs—not the decision. The parties and the judge then discuss what they thought were their key choices in framing, trying, writing, and appealing their cases.

“We are drawing back the veil, similar to what was done in The Wizard of Oz, to see the off-stage actors behind the screen—insurers, clients, and others—who often make or veto the critical decisions,” Coffee told students in one of the first meetings of the seminar.

In some cases, students found that the more important conflicts were among the defendants themselves: Could they stay united, or did they split and settle individually? In other cases, plaintiffs’ counsel competed vigorously for control of the action. Each week, students were transported back to critical moments in important corporate trials and were provided with a looking glass into the minds of the key players at key junctures.

What role, for example, did intense media scrutiny play during the lengthy trial of In Re The Walt Disney Company Derivative Litigation? Were the expert witnesses effective in the United Rentals, Inc. v. RAM Holdings, Inc. case? How close was a settlement before someone—the insurers, fellow defendants, or the client’s board—intervened to reject it?

The point, says Coffee, is to show students that litigation often resembles a series of decision trees, with each new decision changing the odds and reshaping the playing field. Often, the key decision is when to settle, and for what. “Even the best litigators have to deal with the cards that they are dealt,” he says. “And it is the foolish litigator who does not consider settlement at many points.”

When the cases are dissected, the class has sometimes heard that the litigators’ advice was rejected by a client who adopted an unwise “damn-the-torpedoes, full-speed-ahead” strategy. “That’s the real world,” Coffee adds, “where the lawyer needs to be as persuasive with the client as with the judge.”

Students were sometimes surprised to hear judges discuss candidly how they protected their decisions from appellate reversal through elaborate fact finding. Other times, the judges were as surprised as the students to learn that cases had provisionally settled, or that defendants were involved in heated discussions with each other.

“To hear the judges say what they were thinking when they wrote their decisions is a really unique opportunity,” says student Adam Ross ’09, who called Coffee’s seminar the best one he has taken at Columbia Law School.

Peter Kiefer is a New York–based writer who has written for the Rome bureau of The New York Times.

Illustration by Ken Orvidas