Asserting Contrary Policy Arguments in "Public Policy" Litigation


In the last decade or so, lawyers and others have tried to make public policy through litigation. With tort lawsuits about tobacco, guns, fast food, and carbon dioxide emissions, among other things, many are using the courtroom in an attempt to create rules that these self-appointed policymakers have determined are good and necessary. Defense lawyers representing industry in these cases are faced with a somewhat difficult choice: to assert, or not, a public policy argument that is contrary to the plaintiff ’s policy agenda. In some cases, defendants have succeeded by asserting public policies contrary to the plaintiffs’ views. In others, defendants have failed to assert truly contrary policy arguments. In still other cases, the plaintiffs’ public policy agenda is not always clear. Although asserting a contrary policy argument is not without risk, defense lawyers should, in every case in which they suspect a policy agenda, identify the particular public policy trying to be created and then consult with their clients about identifying and asserting contrary policy arguments – in addition to asserting the relevant legal arguments. This may take the moral “high ground” from plaintiffs and help persuade courts that the creation of public policy is for the legislative branch of government, not the judicial branch. 

Reprinted by permission from "Asserting Contrary Policy Arguments in 'Public Policy' Litigation," co-author with Kelli Stephenson, Trials and Tribulations, the newsletter of the DRI Trial Tactics Committee, Spring 2009.

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