That is why we have Rule 23. That's why lawyers can't just drop cases, settle cases, take payoffs. They have to go through a process. They have to send out notice, they have to make people aware of what they are doing, and they are subject to objections, to a hearing, to a judge's scrutiny, to a court awarding fees. It is a fishbowl litigation like no other in society.
Melvyn Weiss, a leading securities class action litigator,
testifying before the Civil Rules Advisory Committee,
November 22, 1996
In litigation, as in other life events, protagonists often have very different stories to tell about what happened and what was achieved. One person's trivial damages, pursued out of greed or plain orneriness, is another person's noble cause, requiring rectification and compensation. One person's satisfactory compromise is another person's excessive -- or inadequate -- remedy, given the facts and the law. One person's reasonable reward for a job well done is another person's outrageous extortion. Because most civil lawsuits are negotiated in private and settled between the parties without needing judicial consent, our ability to determine for ourselves the merits of these lawsuits and the justness of their settlements is highly constrained.
Class actions, however, are creatures of the court system. Without the judge's decision to certify a class, the representative plaintiffs and their attorneys cannot proceed on behalf of the class members. Without the judge's approval, a class action settlement cannot bind class members. Without the judge's award of fees, the class counsel cannot be paid. Although most class actions -- like most other civil lawsuits -- are not tried to verdict, class actions are litigated in a fishbowl.
But the decisionmakers who are called upon to assess the virtues and vices of class actions generally cannot peer into the fishbowl themselves. Instead, they rely on stories about what transpired -- what the plaintiffs alleged, what the defendants answered, what was gained, by whom, at what cost -- told by the protagonists and, often, by their political allies. Inevitably, these stories are colored by the storytellers' interests and perspectives. Moreover, most of the stories the