Wal–Mart V. Dukes: The Implications

By Sarah Kellogg

In an era when everything is big, from supersized sodas to global hedge funds, the fact that many corporations are so large their annual revenues rival those of entire countries (and not just the really small ones) is both an opportunity and a challenge. The sheer magnitude of today’s corporations allows for an expansive prosperity in the United States that was difficult to imagine just 50 years ago. Yet it also presents profound challenges for the people who oversee, work for, and regulate these mammoth entities.

No other company better epitomizes those opportunities and challenges than Wal–Mart Stores, Inc. The American big-box retailer reported some $419 billion in global sales in fiscal year 2011, about the size of Norway’s economy, which ranked 23rd in the world in 2010. At its 9,230 retail units in 15 countries, the Arkansas–based company employs some 2.1 million people, including 1.4 million in the United States. Wal-Mart has ranked number one in Fortune magazine’s 500 largest American companies seven times in the past decade. As the saying goes, if you look in the dictionary, the definition of behemoth includes Wal-Mart’s omnipresent logo.

Wal-Mart’s size was a critical factor in the U.S. Supreme Court’s controversial decision in Wal-Mart Stores, Inc. v. Dukes, released last June. The justices decertified a massive class action lawsuit that alleged Wal-Mart’s workplace culture and policies resulted in discriminatory treatment of its female employees. Skeptical of the size of the class and the application of certain class-certification regulations, the Court concluded that the plaintiffs—some 1.5 million current and former female Wal-Mart employees—did not share enough common factors to allow for a class certification. 

The decision sparked both glee and gloom, depending on the particular legal bent of the observer. Academics, government regulators, and the defense and plaintiff bars worked to tease out the implications of the Court’s 5–4 ruling to decertify the class, as well as its unanimous decision on a key procedural question about the appropriate method to seek monetary damages in class action suits. While many attorneys and businesses are taking a wait–and–see approach, keeping a sharp eye on how the lower courts interpret the decision before predicting its ultimate reach, others have declared the opinion so consequential as to see it permanently changing the landscape of class action and employment discrimination jurisprudence.

What is certain is that the sheer magnitude of the company, the class, and the potential payout meant that much was at stake in Dukes. Critics of the decision have accused the Court’s conservative majority of delivering rough justice, gutting protections for workers and consumers while favoring the business community once again.

Accountability: Does Size Matter?
Class actions have long been a tool to hold corporations responsible for improper behavior and to wring dollars from company coffers for plaintiffs and their attorneys. By clipping the plaintiffs’ wings—raising the bar for class certification and attenuating the principle that an extremely large class can be legally cohesive—the Court has, in effect, made it more difficult to employ class action suits in conflicts with global corporations.

“The Supreme Court’s recent decisions may make some wonder whether the Supreme Court has now decided that some corporations are too big to be held accountable,” said U.S. Sen. Patrick Leahy (D–Vt.), chair of the Senate Judiciary Committee, at a June 29 hearing examining the Court’s recent decisions affecting businesses. “You get the unfortunate feeling that many of the justices view plaintiffs as a mere nuisance to corporations. We cannot ignore that sex discrimination in the workplace continues, that corporations continue to deceive consumers, and that fraud continues on Wall Street.

“I believe that the ability of Americans to band together to hold corporations accountable when these things occur has been seriously undermined by the Supreme Court,” Leahy continued. “These decisions have been praised on Wall Street, but will no doubt hurt hardworking Americans on Main Street.”

The American public has been here before, of course. Washington worried itself sick about large corporations when it decided to rescue financial institutions and automobile companies from bankruptcy during the financial collapse. Both the Bush and Obama administrations deemed many of the nation’s largest financial institutions “too big to fail” and put taxpayer dollars in service to salvage them. For some, there was an eerie echo of the “too big to fail” mantra with the Wal–Mart case, where the size of the corporation once again mattered as much or more than the facts of the case to decision makers.

But many elected officials, business leaders, and legal groups say the size of the company was not at issue, but rather the size of the class. Rolling up a million or more employees, shareholders, or consumers into any single case even pushes the boundaries of a vehicle designed to bundle many claims into one class. For Wal–Mart’s allies, the decision has rightly halted imprudent attempts by trial lawyers to milk large corporations for mega-payouts through what they perceive as meritless class action lawsuits.

“This will change the way employment discrimination cases are handled in this country permanently because it changes the incentives for bringing them. Frankly, the plaintiffs’ lawyers who are involved in employment discrimination law are not in it for reasons of altruism,” says Richard A. Samp, chief counsel for the Washington Legal Foundation, the conservative public interest law and policy center. “This is their profession and livelihood, and their success depends on their ability to sue for damages. The Supreme Court now has said you can’t get a class action of this sort ever certified for those kinds of damages.”

Not everyone shares Samp’s certainty about the long-term impact of the decision, but there is a pervasive feeling of resignation among plaintiffs’ attorneys. Still determined to launch class actions, many fear that the Court has set an irreversible course with its new interpretation of more than 40 years of class action jurisprudence. The final result of the Court’s work may not be large companies being called to account through a handful of large class actions, but rather large companies being challenged by thousands of individuals and small groups of individuals.

Early Victories
Given its size and ambition, the Dukes lawsuit was a precedent-setting case from the start. The largest employment discrimination lawsuit in U.S. history, the filings sought injunctive and declaratory relief as well as back pay for some 1.5 million women. Estimates put the potential payout to the plaintiffs in the billions of dollars, and the U.S. Chamber of Commerce declared the suit “the most important class action case in more than a decade.”

The lawsuit began simply enough. It was filed in 2001 in the U.S. District Court for the Northern District of California in San Francisco with Betty Dukes as one of six named plaintiffs. The plaintiffs maintained that Wal–Mart’s policy of giving local managers great discretion over pay and promotions resulted in violations of Title VII of the Civil Rights Act of 1964. Armed with statistical data and expert testimony showing what they believed was a compelling pattern of discrimination in the company, the plaintiffs felt they had a case for a record-breaking class action, and a true winner.

The Federal Rules of Civil Procedure governing class actions were at the very heart of the case. To be certified as a class, a case must meet a series of federal rules requirements: the class must be sufficiently numerous, there must be common questions of law or fact for the class, the claims of the representative parties are claims of the class, the representative parties must fairly protect the interests of the class, and the plaintiffs must satisfy one of three standards under Rule 23.

The district court certified the class in 2004 under Rule 23(b)(2) for claims for punitive damages, injunctive relief, and declaratory relief. It denied certification for back pay, ruling that some of the challenged promotions were not available for all class members. While Wal–Mart questioned the reliability of the plaintiffs’ expert, the court ruled that the validity of the expert testimony was a question to be decided at trial. Rather than settle as soon as the class was certified, a convention followed by many corporations looking to reduce costs and avoid bad publicity, Wal–Mart came back fighting and rallied the business community across the country to its side.

In its appeal, Wal–Mart argued the district court erred on three key issues: allowing monetary relief to predominate over claims for injunctive or declaratory relief; allowing the class to go forward under Rule 23(b)(2), which would eliminate Wal–Mart’s ability to challenge individual claims; and questioning whether Rule 23(a) requirements were met in terms of commonality and typicality.

A three–judge panel of the U.S. Ninth Circuit Court of Appeals denied the appeal, prompting Wal–Mart to ask for an en banc ruling. With a full bench, the appeals court upheld in April 2010 the plaintiffs’ claim for injunctive relief, declaratory relief, and back pay under Rule 23(b)(2), but remanded the question of whether punitive damages should be certified under Rule 23(b)(2) or Rule 23(b)(3). The majority also remanded the question of whether the plaintiffs should be allowed to certify members who no longer worked at Wal–Mart. Once again, Wal–Mart appealed.

Failing the Commonality Test
By the time the Supreme Court issued its ruling, the case had been circulating through the courts for more than 10 years, the parties had spent millions of dollars in fees, and many of the class members no longer worked at Wal–Mart. The High Court’s decision was the culmination of years of work by both the plaintiffs and the defendant and their many allies. While there has been significant debate about how far the lower courts have stretched Rule 23 leading up to Dukes, the Supreme Court quickly ended all doubts about where class actions had been and where they are going.

Writing for the majority, Justice Antonin Scalia concluded that the plaintiffs needed to “affirmatively demonstrate” compliance with Rule 23 by offering “significant proof” of a common policy of discrimination rather than making only an easier–to–prove “showing.” To meet the standard of “rigorous analysis,” courts must also evaluate merits–related factual or legal disputes to ensure the plaintiffs have met the requirements of Rule 23, the Court ruled.

“In a company of Wal–Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction,” Scalia wrote. “The second manner of bridging the gap requires ‘significant proof’ that Wal–Mart ‘operated under a general policy of discrimination.’ That is entirely absent here.”

More critically, the Court clarified the scope of the class action “commonality” requirement. The majority found the Dukes evidence of a common policy—statistical evidence, anecdotal statements, and an expert’s testimony—unconvincing, and noted that commonality exists where class members have suffered the same injury and not just where they have suffered a violation under the same law, such as Title VII.

Commonality only survives where the solution will impact all class members alike. For example, finding one local manager guilty of misusing his discretion in a biased way would be insufficient to establish that another manager’s exercise of discretion was equally discriminatory. “Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all class members’ claims for relief will produce a common answer to the crucial question why was I disfavored,” wrote Scalia.

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr. joined the majority opinion, and Justice Ruth Bader Ginsburg, joined by Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan, dissented in part.

For the dissenters, Wal–Mart’s policy of giving managers authority to make pay and promotion decisions did create a culture that gave rise to unlawful discrimination. In the dissent, Ginsburg wrote she would have let the case proceed under another section of the class action rules. “The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects,” Ginsburg wrote. “Managers, like all humankind, may be prey to biases of which they are unaware.”

While the justices broke down along conservative–liberal lines on the 5–4 decision, all nine justices joined together for a critical procedural ruling. The Court said the plaintiffs’ claims for back pay could not be certified under Rule 23(b)(2) because the rule focuses on injunctive or declaratory relief and does not “extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.”

In recent years, defendants have been especially critical of efforts by plaintiffs’ attorneys to use Rule 23(b)(2) for monetary relief, since they view it as violating the rule’s original intent and giving plaintiffs leave to circumvent the stricter standards for class certification in Rule 23(b)(3).

“That’s what happens with any rule of civil procedure or statute,” says Tami Lyn Azorsky, a partner at McKenna Long & Aldridge LLP. “A wave begins and people who can take advantage of it try to push it to the limit. Ultimately, the Supreme Court has to step in and clarify the rule and stop the practice.”

The majority opinion also attacked the construction of the Dukes case, particularly the plaintiffs’ failure to adequately illustrate the scope of discrimination in the Wal–Mart workplace. To make its point, the majority compared Dukes to a similar formula–based lawsuit, Teamsters v. United States. In Teamsters attorneys provided about 40 specific accounts of racial discrimination from individuals, representing roughly one account for every eight members in the class suit involving 334 persons. By contrast, attorneys for Dukes provided some 120 affidavits, representing one affidavit for every 12,500 class members.

“More than half of these reports are concentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal–Mart’s operations at all,” the majority noted.

It also addressed the dispute between the parties over the plaintiffs’ expert witness and the admission of his testimony. The district court concluded that Daubert v. Merrell Dow Pharmaceuticals, Inc., which gave judges the authority to determine whether experimental research or techniques should be included in a case or excluded as junk science, did not apply to expert testimony at the certification stage of class action proceedings. The Supreme Court responded: “We doubt that is so.” That leaves defendants another opening to discredit expert witnesses called on to explain statistical data sets and other research in employment cases and mass torts.

The Court also unanimously rejected the “Trial by Formula” approach put forward by the Ninth Circuit. This method would have a random sample of class members’ claims tried, and the results of those trials applied to the whole class. The approach has been used in other collective actions under the Fair Labor Standards Act. The Court stressed that Wal–Mart should be allowed to raise individual defenses to each class member’s claim—not only the sample cases—in proceedings to defend each personnel decision.

Out-of-Touch Justices?
What the Court’s decision in Dukes reinforces for many is the inability or refusal of certain justices to understand the reality of today’s workplace. Companies are wildly large. They cross international boundaries. Technology allows employees to work from great distances. Management is separated from its supervisors by time and space, and employees are numerous and disconnected.

Setting aside concerns that the Court has a bias toward business, there is a belief among many trial lawyers that some justices, ensconced in their velvet–curtained, polished wood, and marbled offices, are out of touch with the real world. That notion was given even greater credence by the majority’s apparent belief that Wal–Mart did not discriminate against its employees because it had an antidiscrimination policy on the books and, more importantly, because it said so.

“Justice Scalia, in his opinion, said most people make neutral decisions on pay and promotions,” says David Sanford, founding and managing partner at Sanford Wittels & Heisler LLP. “They do not discriminate or allow discrimination to exist. It’s not a truth divined in the universe. Maybe Justice Scalia has never experienced discrimination, but a lot of people have. Justice Scalia is not living in a world inhabited by most people in this country.”

Going forward, plaintiffs’ attorneys will be fighting what some would call the Court’s outdated and inexplicably naïve view of corporate America and its motives. Take the Wal–Mart antidiscrimination policy as an example. If there was any proof needed of corporate cynicism in class actions, Sanford says, look no further than the interest in adopting a similar company–wide policy to shield corporations from complaints of bias in promotions or pay.

“Justice Scalia endorses the kinds of workplace rules that could take us back decades to an era where we really only had rudimentary sets of rules in the workplace and managers had so much autonomy that they could pretty much do whatever they liked,” says Joseph M. Sellers, a partner at Cohen Milstein Sellers & Toll PLCC and a lead attorney for the Dukes plaintiffs.

As to the Court’s apparent sympathy for business, no one was truly surprised by the decision in Dukes, given the majority’s past rulings in key business cases. But there are some who argue that the five conservative justices are not given credit for the unbiased and nuanced approach they bring to many business cases, where they do side with employees and consumers.

Andrew J. Pincus, a partner at Mayer Brown LLP, reviewed cases involving private plaintiffs seeking damages from businesses during the Court’s 2010–11 term, and found that businesses lost as many times as they won before the Court, a 9–9 split according to his calculations.

“Indeed, in the cases involving substantive interpretations of employment law, business parties lost every case decided by the Court. I know that some will say that businesses won the most important cases,” Pincus told the Senate Judiciary Committee in June. “But I wonder if their perception of the most important cases isn’t colored by their outcome.”

Like Wal–Mart’s policies opposing discrimination in the workplace, the conservative majority may be fighting a battle more about perceptions than reality.

From Mega–Size to Smaller, Stickier Cases
For plaintiffs in employment discrimination cases, the future is not so much unknowable as uncertain. There are obvious steps they can take to respond to the more stringent class–certification requirements established in Dukes. While new litigation strategies may provide their own unique set of opportunities, it is unclear whether they will meet the Court’s sniff test. It is also unclear how lower courts will interpret attempts to comply with or sidestep Dukes.

Plaintiffs’ attorneys say the process will proceed slowly now as lawyers look for a new path forward. Attorneys will file smaller and more creatively constructed class action suits, but those employment cases that are too broad in scale and geography have definitely been buried for good. Smaller lawsuits will likely boost the overall number of filings, resulting in potential public relations disasters for defendants, but they are less financially punishing than a mega–class action.

Plaintiffs’ attorneys in Dukes have already begun the uphill battle of reorganizing the large class into smaller lawsuits, compiling the names of current and former Wal–Mart employees and studying regional patterns to determine where and what to file.

“We’re looking at breaking this case into pieces, and that may lead to waging these battles on a dozen fronts rather than adjudicating them all in one place,” Sellers says. “Even though Wal–Mart may escape liability for a significant number of claims, it will not escape all liability. We’ve already heard from more than 12,000 women.”

Sellers says not all of the women who have come forward would fit into the smaller, more discrete class actions. Instead, their complaints likely will be pursued through the U.S. Equal Employment Opportunity Commission (EEOC), which is not limited by the same federal Rule 23 regulations in processing employment discrimination claims. Of course, the EEOC is sorely underfunded and burdened with a backlog of cases—an estimated 105,000 in fiscal year 2011—that already test its abilities to adjudicate discrimination claims in a timely fashion. Attorneys on both sides predict a major increase in EEOC claims as a result of the Wal–Mart case.

With the Court taking Rule 23(b)(2) out of play for monetary relief, plaintiffs will have to file claims under the more confining Rule 23(b)(3). The rule sets a higher threshold, which explains why plaintiffs’ attorneys have eschewed it in the past for the more friendly Rule 23(b)(2). Plaintiffs will have to meet the additional requirement of predominance and superiority as well as address the procedural protections of notice and opt-out rights, both of which are likely to limit the payout.

Furthermore, plaintiffs will need to build a stronger, more detailed case for certification, facing a much higher threshold for expert analysis and statistical data. In Dukes the Court rejected the testimony of sociologist William Bielby, who said Wal–Mart’s corporate culture made it “vulnerable” to gender bias. In the future, plaintiffs will have to expand their pool of experts and make them available sooner to argue the merits of the case in the certification phase. They also will likely need to invest additional time and resources into cultivating sufficient class–member declarations to reflect a reliable percentage of the class.

Plaintiffs may try their luck in state courts as an alternative to filing federally and facing the stiffer requirements. “Frankly, I suspect what’s really going to happen now, to the extent it’s possible, is that plaintiffs will try to bring these cases in state court and keep them there,” says Samp of the Washington Legal Foundation. “If they can go to Madison County, Illinois, or other jurisdictions that are friendly to certification, and avoid getting removed to federal court, they could get and keep their class certified.”

Many states have similar if not the same class action rules as federal Rule 23. In states where there is a substantive difference between the two sets of regulations, such as California, state judges will likely consider federal rules in applying their own, but they aren’t necessarily bound by them.

“If the plaintiffs are local and the defendant is local, and the people bring a class action under state law, it’s true there might be a more favorable class certification standard in some states,” says Brian Wolfman, a visiting professor at Georgetown University Law Center and co–director of the Institute for Public Representation. “Some states would not be imposing the stringent certification requirements as those imposed in the Wal–Mart case.”

Others hope Congress will step in to clarify the rules, as it often had in the past when the Supreme Court interpreted its statutes in ways that went beyond the original intent, which some see is the case in Dukes. “The Wal–Mart decision is the law of the land as of now,” Sanford says. “It’s really up to Congress to enact the statute or rule that brings us forward into the 21st century as opposed to taking us back to the 1950s, which this Court has done.”

Given the current makeup of Congress, and the heavy weight of the 2012 presidential election on Washington’s political activities, it’s unlikely the U.S. House or Senate will craft a series of class action regulations that could be used by plaintiffs to more effectively sue U.S. corporations.

Despite all the other avenues available to plaintiffs, many critics of the decision still believe the Court has kneecapped class action jurisprudence permanently. “This decision will likely kill class actions of this size, which is ironic because it suggests that the larger the company, the easier to shield yourself from a class action,” says Suzette Malveaux, an associate professor at The Catholic University of America Columbus School of Law who served as counsel for the plaintiffs in the early stages of the Wal–Mart case.

Handy Weapon for Corporations
As the Dukes decision came down, the plaintiff and defense bars were quick to extrapolate its meaning beyond the employment arena and into mass torts and securities cases. Many legal experts believe drug and product liability lawsuits, as well as cases brought by investors and environmentalists, will be dramatically affected by the Court’s interpretation of class action rules.

It didn’t take long to see that prediction realized. Two days after the Dukes decision was released, attorneys for Washington Mutual argued that “commonality” was missing in cases involving investors in securitized mortgages, including those that happened to invest in the same pool of loans. Citing Dukes, the company was looking to prevent pension fund investors from being certified as a mega–class to pursue claims. “Even if plaintiffs seek to ask the same question across all loan groups and all securities, unless they can be assured of getting the same answer, no class can be certified,” said the court filing, which is pending in the U.S. District Court for the Western District of Washington in Seattle. Soon after, Washington Mutual and its fellow defendants agreed to settle the class action lawsuit and pay $208.5 million to the plaintiffs. As of this writing, the bankruptcy judge had not yet signed off on the deal.

McKenna Long’s Azorsky notes that the Court’s ruling wasn’t revolutionary as it relates to product liability cases, but it has helped clarify legal positions many product liability attorneys have taken in the past to defend their corporate clients. “I think there is good language in the decision to further support the kind of position we take representing defendants who want to prevent classes from being certified,” Azorsky says. “I don’t think it’s a groundbreaking decision, but I do think it will be helpful with environmental torts, occupational torts, and product liability cases. It informs the approach a defendant should take.”

Medical device and drug product liability defenses would certainly be assisted by the Dukes conclusions because of the individual role played by medical care providers in prescribing specific treatments for unique patients—people who have little in common with each other besides the use of the same drug or device.

But many experts don’t believe the Dukes decision will have a widespread effect on securities and mass tort cases, mostly because it was so narrowly focused on the facts of the Wal–Mart class action. If it does have an impact, it will be in the context of class certification.

“This was a highly specific case,” Wolfman says. “The notion that this is going to apply some kind of new, highly stringent standard of determining law and fact and is going to bump out securities cases strikes me as unlikely.”

Nevertheless, the fact that attorneys for corporations have already started to apply the decision in pending cases does not bode well for plaintiffs, say observers. The Court has provided defendants with a handy weapon to undermine class action lawsuits.

“The erosion of the effectiveness of the class action device has moved us very far from the intent of the drafters of Rule 23 in 1966, the current version of the rule,” said Melissa Hart, an associate professor at the University of Colorado Law School, in testimony to the Senate Judiciary Committee. “Because the class action is the only way to reach many kinds of systemic misconduct, the erosion of this tool insulates companies from any serious risk of litigation for many kinds of potentially illegal behavior.”

Unintended Consequence
One consequence of the Court’s decision may be the work it creates for already overburdened lower courts—and the plaintiff bar. Class actions have been a powerful tool for managing the steady march of cases against a single employer or company through the court system. Now the Supreme Court has unleashed what might possibly be a tsunami of smaller class actions on the federal courts in the coming years.

“What gets lost is that class actions are not just for plaintiffs, they’re for everyone,” Malveaux says. “They’re good for defendants and judges because everything is handled together. Judges are completely swamped; they’re overwhelmed with cases. They’re not interested in having identical looking cases, one after another, going forward. The court system is looking for efficiencies, and there won’t be any efficiencies here.”

Obviously, most corporations celebrated the ruling, but for those that spit bile over the earmarking of large portions of settlements for plaintiffs’ attorneys, corporations may have exchanged one large victory for a series of smaller victories.

“It’s kind of a loss for everyone, not just for the plaintiffs,” Malveaux says. “Companies aren’t particularly interested in being saddled with a lot of litigation. The class action allowed them to resolve it in one swoop and not have their reputations and time always being attacked. This may be winning and losing at the same time.”

Too Fearful to File
While the Dukes decision won’t eliminate all class action lawsuits, it will severely curtail similar employment discrimination cases, and will most certainly impact the presentation and success rates of class actions for securities cases and mass torts. By handing defendants the ammunition they need to effectively slay mega–classes, the Court has seriously undermined the class action lawsuit today and in the future. Or at least until plaintiffs’ lawyers can come up with a new strategy to play.

“These cases have been really hard to bring for quite some time, and I think the Supreme Court has only made it harder,” Malveaux says. “They have raised the standard to show commonality, among many other things, and I think it’s going to be hard for employment discrimination cases of this magnitude to survive after Wal–Mart.”

With the unpredictable nature of the court system, and the very human judges who guide it, looking into the future and divining the nuts–and–bolts effect of the Dukes case may be as effective as guessing winning Powerball numbers.

“One thing is certain, however: predictions made today about the reach of the Court’s decisions are highly likely to be incorrect,” said Pincus of Mayer Brown in his testimony to the Senate Judiciary Committee. “We don’t really know what these [recent] decisions are going to mean until we see how the lower courts are going to interpret them.”

What is clear, however, is that corporate America has won the result it desired, and that the plaintiff bar is scrambling for novel avenues to proceed. The effect of this ruling may not be a long line of failed class action lawsuits where plaintiffs have sued corporate behemoths and had their hopes dashed in courts. More likely, the end result of Dukes may be its chilling effect on plaintiffs even attempting to sue corporations the size of Wal–Mart. Before the first attorney has been contacted or the first lawsuit filed, the mantra may switch from “too big to sue” to “too fearful to file.”

Sarah Kellogg is a freelance writer in Washington, D.C. She wrote last about the transformation of legal education in the May 2011 issue of Washington Lawyer.