Key author of the month: Joseph M. McLaughlin
As part of our ongoing series highlighting Thomson Reuters key authors, this month we highlight Joseph M. McLaughlin, partner at Simpson Thacher & Bartlett LLP. He has represented clients in hundreds of class action, shareholder derivative and other aggregated proceedings in trial and appellate courts across the country, including the United States Supreme Court. McLaughlin is the author of the two-volume treatise, McLaughlin on Class Actions: Law and Practice. Now in its Tenth Edition, his treatise is one of the most frequently cited treatises in class action and shareholder derivative litigation in federal and state trial and appellate courts around the country. He is also a frequent lecturer across the country on class action, securities and corporate governance matters, and his commentary on these issues has been widely published, including in a regular column in the New York Law Journal. Recently, Attorney Editor Elizabeth Murthy asked McLaughlin about his work as an author and his other interests.
Elizabeth Murthy: What inspired you to start writing in general and what more specifically motivated you to write McLaughlin on Class Actions: Law and Practice?
Joseph McLaughlin: The best way to master a subject is to explain it to others. Ten years ago, I felt I’d obtained sufficiently broad-gauge knowledge and experience in complex litigation to write a treatise that would provide a comprehensive resource synthesizing the body of case law and legislation that governs the litigation of class actions and shareholder derivative actions. There was a gap in the existing literature of practical use to judges and practitioners, so I set out to write the resource I’d looked for as a practitioner.
EM: What approach do you take to enhance the value of your treatises?
JM: To bear in mind that the reader wants clear and even-handed explication of the law and practice. A litigator needs to know how to strip away non-essentials and lay bare the heart of a dispute in crisp language. McLaughlin on Class Actions provides full-scale exploration of all class action principles of general application, but ties theory to how cases are litigated in the real world. The treatise features focused discussion of class action law in all the major substantive areas in which class action claims are litigated, settled and tried. I write knowing that the reader is looking for answers to concrete questions, as well as relevant strategic considerations and tactical tips.
EM: What are the basic ingredients for success as an author?
JM: Stay on top of developments. Courts are issuing decisions each week that clarify and often materially change class action law and practice. Continually re-examine your existing writings for continued validity in the wake of recent developments. Avail yourself of the captive expertise of your colleagues.
EM: What advice would you give to authors seeking a healthy balance between their responsibilities as an author and their other career and family interests?
JM: There is no getting around the need to borrow time from your nights and weekends. Good organization and efficiency, however, yield ample time to ensure no responsibility is given short shrift. Clients also appreciate the efficiencies and insights that immersion in a practice area brings to their representation.
EM: What led you to focus on class action lawsuits?
JM: For 25 years I’ve been privileged to represent clients in some of the largest class actions on a variety of subjects. Effective representation of clients in complex litigation demands focus and experience; you cannot dabble and do it well. I realized that I’d accumulated a substantial base of knowledge and experience which, if organized in a systematic way, would sharpen my skills and offer a valuable resource to judges and practitioners.
EM: What trends or influences do you see as having the greatest potential impact in the area of class actions over the next 10 years?
JM: The Supreme Court’s unusually active engagement with class actions in recent years has set the stage for significant changes in how some of the most familiar aspects of class actions are litigated and resolved. These developments have changed class action practice in enough key ways that it’s not an overstatement to caution practitioners to cite class action authority that is even a few years old only after evaluating its continued validity against recent pronouncements. To name a few: the permissible scope of certification of limited “issue classes” in light of recent judicial tightening of the Rule 23 requirements; the role of experts and expert proof at the class certification stage; the extent of cross-over effects into other substantive areas of the high Court’s recent decisions in antitrust, securities, employment and consumer class actions; and how extensively will the Supreme Court’s anticipated decision this spring concerning the fraud-on-the-market presumption of class-wide reliance rewrite the way securities class actions are litigated?
EM: Who most influenced you in your legal and authoring career?
JM: I was fortunate — blessed would be a better word — to have a father who was a larger than life touchstone. Judge Joseph McLaughlin’s extensive writings as a law teacher, Dean and judge sparkled with grace, learning and wit. He showed us that in the right hands, any subject can be made exciting.