Lieff Cabraser partner Dean M. Harvey spoke with Law360 to offer advice to antitrust lawyers on “five writing mistakes that can tilt the balance against your antitrust clients.” Along with Hausfeld LLP’s Scott Martin and Daniel Francis of Hunton & Williams, Mr. Harvey was tapped by the legal journal for his knowledge and expertise in the face of an inherent problem for antitrust attorneys created by “the complexity of competition law [which] puts them at a heightened risk of hurting their chances of victory by writing briefs that judges struggle to read.”
“Perhaps the biggest challenge for antitrust lawyers is that some of what we do can get bogged down in economic jargon,” Mr. Harvey said. “There’s certainly a specialized language that antitrust practitioners use that may be alien to attorneys practicing in other areas of the law.” But attorneys don’t need to keep using such academic terminology, so long as they can wrap their heads around the underlying ideas, Harvey added.
“If there’s an argument or some economic point that you understand, you should be able to explain it very clearly to somebody,” he said. “If you can’t, it doesn’t mean that the concept is difficult or that the audience is dim. It probably means that you don’t understand it yourself that well.”
Mr. Harvey also offered caution about the questionable tactic of choosing a writing approach that substitutes bluster and posturing in place of reasoned legal argument. Harvey, who clerked for U.S. District Judge James V. Selna before going into private practice, said he learned during his clerkship that attacks on an opponent can easily backfire, giving the judge and law clerks a negative impression of the lawyer throwing those insults.
“The attorney immediately loses credibility and sends a signal of, ‘I’m substituting insults and poorly chosen language for legal reasoning and facts,’” he said. “There’s no bigger mistake to me in legal writing than that.”
Mr. Harvey and the other attorneys had a wealth of additional guidance to offer, all of which can be read in the full article on Law360’s website (subscription).
About Dean Harvey
A partner in Lieff Cabraser’s San Francisco office, Dean Harvey represents individuals and companies in antitrust, business tort, employment, and intellectual property litigation. His cases seek to remedy and prevent wrongful conduct by dominant firms. These precedent-setting lawsuits concern a wide variety of industries and markets. Remedies include reimbursing purchasers who have overpaid for price-fixed products; preventing monopolists from stifling innovation and eliminating competition; and obtaining damages for businesses, inventors, and copyright owners.
Mr. Harvey was a leader in the High-Tech Antitrust class action against Google, Apple, Intel and other tech giants for allegedly conspiring to suppress the mobility and compensation of their technical employees. This landmark case resulted in the largest recovery (by far) of any class action asserting antitrust claims in the employment context: $435 million. Mr. Harvey continues the fight to ensure that employees receive competitive compensation, currently representing a doctor in a class action alleging an unlawful no-hire agreement between the medical schools of Duke University and the University of North Carolina. Earlier this week, defendants’ request for review of their unsuccessful attempt to have the case dismissed was denied.