Reuben Guttman's guest appearances

Reuben Guttman

May the Record Reflect

Marc Miller

Steve Wood

Jason Young

amy hanley

Nancy Gertner

Whitney Untiedt

Amy Hancock

Tim Henderson

Mike Beckwith

Dick Harpootlian

Mark Drummond

Rebecca Diaz-Bonilla

Stephanie Ledesma

Carol Sowers

Catharine DuBois

OwlTail

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. Topics4:02Twombly/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 GertnerResourcesJudge 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) 

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. Topics 4:02Twombly/Iqbal’s impact on pleading standards 7:17    Why process and procedure matter  10:16  Changes pleading standards 12:43  Changes in class certifications 14:11  Rise of multidistrict litigation 16:20  Changes in expert standards, both criminal and civil 21:47  Experts in the civil rights arena 25:40  Applying today’s pleading and class certification standards to Brown v. Board 29:30  Rules that affect access to justice 33:04  The benefit of a losing Supreme Court case 36:04  Getting around these obstacles 44:11  Judges, lawyers, and the legacy of discrimination cases 48:35  Signoff question Quote “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 Resources Judge Nancy Gertner (<a href="https://nancygertner.com/" rel="nofollow" target="_blank">bio</a>)  Reuben Guttman (<a href="https://www.gbblegal.com/reuben-a-guttman/" rel="nofollow" target="_blank">bio</a>) Representative Opinions of Justice Ruth Bader Ginsburg (<a href="https://www.lawbookexchange.com/pages/books/73449/nancy-gertner-ruth-bader-ginsburg/representative-opinions-of-justice-ruth-bader-ginsburg-2-volumes" rel="nofollow" target="_blank">book</a>) From Conley to Twombly to Iqbal (<a href="https://scholarship.law.duke.edu/dlj/vol60/iss1/1/" rel="nofollow" target="_blank">article</a>)  Brown v. Board of Education complaint (<a href="https://www.eisenhowerlibrary.gov/sites/default/files/research/online-documents/civil-rights-brown-v-boe/complaint.pdf" rel="nofollow" target="_blank">PDF</a>) Pretrial Advocacy (<a href="https://www.nita.org/s/product/pretrial-advocacy/01t4W00000DALniQAH" rel="nofollow" target="_blank">book</a>)

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

In Episode 22 of May the Record Reflect, Reuben Guttman and J.C. Lore discuss their new book, Pretrial Advocacy, and why modern litigation practices necessitate early, close attention from practitioners. They discuss the interplay of early discovery with the Federal Rules of Evidence and Civil Procedure, how law schools are responding to “front-loaded” litigation that often results in fewer jury trials, why public interest law matters, and what’s exciting about pretrial.   Topics3:37    The meaning of front-loaded cases6:16    Effects of Iqbal, Twombly, and Daubert on law practice and teaching advocacy10:15  Pretrial advocacy at law school12:14  Is pretrial exciting? 16:56  Settlement versus trial18:21  Why trials are still important23:09  Getting to know the rules29:07  Social media evidence36:20  What’s lost with settlement38:22  Public interest practice41:03  Signature signoff question Quotes“The fun thing I always thought about pretrial advocacy is you get to learn about areas you never knew of. I once met a famous trial lawyer many, many years ago and he’s since passed – Alfred Julien – and he told me that one of the fabulous things about being a trial lawyer is that you get to be a jack of all trades, in some regards, and an expert in none. I always thought it was exciting because it’s a process you get to immerse yourself in and really learn a lot.” (Reuben Guttman)“Certain types of trials aren’t happening anymore because of the huge cost of litigation. But there are courthouses and courtrooms all over this country that are doing trials every single day, on both the civil and the criminal side. You go to landlord–tenant court, you go to family court, you go to municipal court, you go to immigration court—all of these courts are having trials all of the time.” (J.C. Lore)  Recommended ResourcesPretrial Advocacy (book)Reuben Guttman (bio)J.C. Lore (bio)Iqbal v. AshcroftBell Atlantic Corp. v. TwombyConley v. GibsonDaubert v. Merrell Dow Pharmaceuticals, Inc.  Read NITA’s statement on the important of in-person advocacy in courts, here.

In Episode 22 of May the Record Reflect, Reuben Guttman and J.C. Lore discuss their new book, Pretrial Advocacy, and why modern litigation practices necessitate early, close attention from practitioners. They discuss the interplay of early discovery with the Federal Rules of Evidence and Civil Procedure, how law schools are responding to “front-loaded” litigation that often results in fewer jury trials, why public interest law matters, and what’s exciting about pretrial.   Topics3:37    The meaning of front-loaded cases 6:16    Effects of Iqbal, Twombly, and Daubert on law practice and teaching advocacy 10:15  Pretrial advocacy at law school 12:14  Is pretrial exciting?  16:56  Settlement versus trial 18:21  Why trials are still important 23:09  Getting to know the rules 29:07  Social media evidence 36:20  What’s lost with settlement 38:22  Public interest practice 41:03  Signature signoff question Quotes“The fun thing I always thought about pretrial advocacy is you get to learn about areas you never knew of. I once met a famous trial lawyer many, many years ago and he’s since passed – Alfred Julien – and he told me that one of the fabulous things about being a trial lawyer is that you get to be a jack of all trades, in some regards, and an expert in none. I always thought it was exciting because it’s a process you get to immerse yourself in and really learn a lot.” (Reuben Guttman)“Certain types of trials aren’t happening anymore because of the huge cost of litigation. But there are courthouses and courtrooms all over this country that are doing trials every single day, on both the civil and the criminal side. You go to landlord–tenant court, you go to family court, you go to municipal court, you go to immigration court—all of these courts are having trials all of the time.” (J.C. Lore)  Recommended ResourcesPretrial Advocacy (<a href="https://www.wklegaledu.com/NITA-Lore-PretrialAdvocacy" rel="nofollow" target="_blank">book</a>)Reuben Guttman (<a href="https://www.gbblegal.com/reuben-a-guttman/" rel="nofollow" target="_blank">bio</a>)J.C. Lore (<a href="https://law.rutgers.edu/directory/view/jclore" rel="nofollow" target="_blank">bio</a>)<a href="https://www.oyez.org/cases/2008/07-1015" rel="nofollow" target="_blank">Iqbal v. Ashcroft</a><a href="https://www.oyez.org/cases/2006/05-1126" rel="nofollow" target="_blank">Bell Atlantic Corp. v. Twomby</a><a href="https://supreme.justia.com/cases/federal/us/355/41/" rel="nofollow" target="_blank">Conley v. Gibson</a><a href="https://www.law.cornell.edu/supct/html/92-102.ZS.html" rel="nofollow" target="_blank">Daubert v. Merrell Dow Pharmaceuticals, Inc.</a>  Read NITA’s statement on the important of in-person advocacy in courts, <a href="https://www.nita.org/frontend/assets/img/pdf/NITA_Statement.pdf" rel="nofollow" target="_blank">here</a>.

22. Pretrial Advocacy, with Reuben Guttman and J.C. Lore

Remote

In Episode 8 of the podcast, we are joined by Kansas District Court Judge Amy Hanley and D.C. civil litigator Reuben Guttman to talk about how to get it right in video and telephonic hearings. The disruptions caused by the covid pandemic have suddenly moved the courtroom into your dining room, and our guests are sharing their best do’s and don’ts from their respective positions on and before the bench. The Honorable Amy Hanley is based in Lawrence, Kansas, and presides over a civil, domestic, and criminal docket for the Seventh Judicial District of Douglas County. In his class action and complex civil litigation practice, Reuben Guttman has become one of the most prominent whistleblower lawyers in the world. Topics6:04    Constitutional and statutory constraints9:12    Preparing your client 11:20  Judges’ expectations13:40  Putting clients at ease15:08  Courtroom transition to online 16:51  Views from the bench18:33  Creating formality23:17  Equal time 29:25  Exhibits and judge preferences31:43  Presenting exhibits33:45  Making a court record35:25  Recording the hearing36:44  Communicating with client40:25  Witness sequestration41:42  Confidentiality issues43:26  Public Zoom hearings46:00  Closing advice48:20  Technology’s impact on the law49:07  Signature “softball”Quotes“If your judge doesn’t have the protocol [for remote hearings], don’t be afraid to ask for it. A little secret that I’ll let you in on is that judges love it when counsel does that work for us. You might be better suited to draft and propose a protocol due to your familiarity with the technology or because you know the witnesses and exhibits that need to be used. And we love it when you do that work for us ahead of time and send in a draft that we can use as a starting point.” Judge Amy Hanley“It’s important to get [clients] to appreciate what it’s going to look like, what they’re going to look like, in the courtroom and to have them to appreciate that maybe the judge might actually pose a question to them directly, to rehearse some of that so they’re not surprised. If you’re sitting next to somebody, it’s a lot easier to tap them and say, ‘It’s ok, don’t worry about it. Answer the question,’ but remotely, I mean, there’s an intuitive sense of fear: ‘Oh, my God, I’m not prepared for this.’ So, the idea is that you want to make sure whether you’re putting your client on from prison or jail, or whether you’re putting your client on from a hospital room, you want to make sure that at least they understand what the possibilities are, in preparing them. I call it inoculation, inoculation against the possibilities that may give them anxiety.” Reuben GuttmanRecommended ResourcesDouglas County District Court Guidelines for Court Hearings on ZoomUsing Zoom for Court HearingsVideoconferencing in the CourtroomFirst Emergency Order Regarding the COVID-19 State of Disaster, Supreme Court of TexasRemote Testimony and Fed. R. Crim. P. 26Center for Legal &amp; Court Technology Best Practices

In Episode 8 of the podcast, we are joined by Kansas District Court Judge Amy Hanley and D.C. civil litigator Reuben Guttman to talk about how to get it right in video and telephonic hearings. The disruptions caused by the covid pandemic have suddenly moved the courtroom into your dining room, and our guests are sharing their best do’s and don’ts from their respective positions on and before the bench. The Honorable Amy Hanley is based in Lawrence, Kansas, and presides over a civil, domestic, and criminal docket for the Seventh Judicial District of Douglas County. In his class action and complex civil litigation practice, Reuben Guttman has become one of the most prominent whistleblower lawyers in the world. Topics6:04    Constitutional and statutory constraints 9:12    Preparing your client  11:20  Judges’ expectations 13:40  Putting clients at ease 15:08  Courtroom transition to online  16:51  Views from the bench 18:33  Creating formality 23:17  Equal time  29:25  Exhibits and judge preferences 31:43  Presenting exhibits 33:45  Making a court record 35:25  Recording the hearing 36:44  Communicating with client 40:25  Witness sequestration 41:42  Confidentiality issues 43:26  Public Zoom hearings 46:00  Closing advice 48:20  Technology’s impact on the law 49:07  Signature “softball”Quotes“If your judge doesn’t have the protocol [for remote hearings], don’t be afraid to ask for it. A little secret that I’ll let you in on is that judges love it when counsel does that work for us. You might be better suited to draft and propose a protocol due to your familiarity with the technology or because you know the witnesses and exhibits that need to be used. And we love it when you do that work for us ahead of time and send in a draft that we can use as a starting point.” Judge Amy Hanley“It’s important to get [clients] to appreciate what it’s going to look like, what they’re going to look like, in the courtroom and to have them to appreciate that maybe the judge might actually pose a question to them directly, to rehearse some of that so they’re not surprised. If you’re sitting next to somebody, it’s a lot easier to tap them and say, ‘It’s ok, don’t worry about it. Answer the question,’ but remotely, I mean, there’s an intuitive sense of fear: ‘Oh, my God, I’m not prepared for this.’ So, the idea is that you want to make sure whether you’re putting your client on from prison or jail, or whether you’re putting your client on from a hospital room, you want to make sure that at least they understand what the possibilities are, in preparing them. I call it inoculation, inoculation against the possibilities that may give them anxiety.” Reuben GuttmanRecommended Resources<a href="https://www.douglascountyks.org/sites/default/files/media/depts/district-court/pdf/guidelines-court-hearings-zoom.pdf" rel="nofollow" target="_blank">Douglas County District Court Guidelines for Court Hearings on Zoom</a><a href="https://www.txcourts.gov/media/1446249/zoom-webinar-slides.pdf" rel="nofollow" target="_blank">Using Zoom for Court Hearings</a><a href="http://socialaw.com/docs/default-source/judge-william-g.-young/judging-in-the-american-legal-system/04devoe-sarita-paper.pdf" rel="nofollow" target="_blank">Videoconferencing in the Courtroom</a><a href="https://txcourts.gov/media/1446056/209042.pdf" rel="nofollow" target="_blank">First Emergency Order Regarding the COVID-19 State of Disaster, Supreme Court of Texas</a><a href="https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1157&amp;context=articles" rel="nofollow" target="_blank">Remote Testimony and Fed. R. Crim. P. 26</a><a href="https://www.acus.gov/sites/default/files/documents/Draft_Best%2520Practices%2520Video%2520Hearings_10-09-14_1.pdf" rel="nofollow" target="_blank">Center for Legal &amp; Court Technology Best Practices</a>