Clerk Case Study: Google Pay Discrimination, Round 2
Last fall we used Clerk — our brief drafting and analysis tool — to evaluate Google’s demurrer in the Ellis v. Google gender discrimination lawsuit. Clerk’s analysis enabled us to correctly predict the outcome of the demurrer (sustained with leave to amend) and the resolution of the main legal issue (class suitability could be determined by demurrer).
It is now six months later and the litigants just finished fighting round two. Following the initial demurrer, the plaintiffs filed an amended complaint (the “First Amended Complaint”); Google filed a demurrer to the First Amended Complaint; the plaintiffs opposed the second demurrer; and the judge, Judge Mary E. Wiss, issued a decision.
Interestingly, this time the outcome was different. The second demurrer was overruled; the plaintiffs won.
This is great news for the plaintiffs, as their lawsuit lives on and the settlement value of their case just got a big boost. Class certification remains an outstanding issue, but it looks more likely to be granted.
What changed, and what can Clerk tell us about the legal strategy of Altshuler Berzon and Lieff Cabraser, plaintiffs’ counsel? A Clerk comparison sheds some interesting light.
Improving The Odds
The biggest difference between the plaintiffs’ two opposition briefs is that from Clerk’s point of view, the second brief was significantly more likely to win.
Clerk grades briefs across three dimensions: Arguments, Drafting, and Context. These component grades feed into a measure of the brief’s Overperformance or Underperformance — labels that capture the strength of the brief, and which are good predictors of whether a brief will win or lose.
The plaintiffs’ first opposition was a Weakly Overperforming brief, while the plaintiffs’ second opposition was a Strongly Overperforming brief.
- Weakly Overperforming briefs are those where Clerk’s Arguments grade is fewer than 10 points higher than the brief’s Context grade, indicating that the brief is a little more likely to win than the Context suggests.
- Strongly Overperforming briefs are those where Clerk’s Arguments grade is 10 or more points higher than the brief’s Context grade, indicating that the brief is far more likely to win than the Context suggests.
So the second brief did a much better job of arguing the plaintiffs’ position favorably, and consequently had a higher likelihood of winning.
Adjusting The Balance
The second big difference between the briefs is that the first brief was relatively balanced in its argumentation, while the second brief was aggressively one-sided. This can be seen in the way Clerk’s scoring changed across two measures: Cases Sharing Arguments and Outcomes of Cited Cases.
These evaluate: (1) how favorable the arguments in the brief are, and (2) how balanced the discussion of the case law is.
Cases Sharing Arguments
The first opposition brief scored Weak on the Cases Sharing Arguments dimension:
The grade was low because the arguments in the first brief favor defendants far more than they favor plaintiffs. (Notice the dark blue plaintiff-winning wedge is much smaller than the bright blue defendant-winning wedge.) An average defendant would be almost 50% more likely to win on the arguments in the plaintiffs’ brief.
By contrast, the second opposition brief scored Strong on the Cases Sharing Arguments measure:
The grade in the second brief was higher because the arguments there heavily favor plaintiffs over defendants. (Notice the dark blue plaintiff-winning wedge is much larger than the bright blue defendant-winning wedge.) An average plaintiff would be almost twice as likely to win on the second brief’s arguments.
Outcomes of Cited Cases
In addition to having more favorable arguments, the second brief was more one-sided in its discussion of case precedent.
The first opposition brief scored Strong on the Outcomes of Cited Cases dimension because it addressed both plaintiff-winning and defendant-winning cases fairly evenly:
The first brief relied on precedent that supported the plaintiffs’ position, but it also attacked precedent that backed the defendant’s position.
By contrast, the second opposition brief scored only Fair on the Outcomes of Cited Cases dimension:
This reflects that the second brief relied heavily on plaintiff-winning cases, while only barely addressing precedent that supported the defendant.
Generally, briefs do better when their argumentation is more balanced; but the proper balance depends a lot on the motion at issue and the party’s role. The one-sidedness in this second opposition brief is extreme, but it isn’t rare. We’ve noted similarly aggressive argumentation in the briefs of John Quinn, the founding partner of Quinn Emanuel. (See Deconstructing John Quinn: What Makes A Litigator Great?.)
The fundamental challenge for litigators is to manage the pull between four competing interests:
- Relying heavily on arguments that support their side
- Demonstrating that the weight of case precedent supports their side
- Attacking arguments that run counter to their side
- Downplaying precedent that is opposed to their side
The two Clerk measures — Cases Sharing Arguments and Outcomes of Cited Cases — capture this tension.
Shifting The Focus
It’s important to note that the second brief was not a redo of the first brief with a new legal strategy applied. Rather, there were intervening changes and a shift in the focus.
First, as noted above, the plaintiffs amended their complaint after the first demurrer, making the class definition more defensible.
Second, Judge Wiss settled one of the major legal issues in the first demurrer: whether it was appropriate to determine class suitability at the demurrer stage. Judge Wiss ruled against the plaintiffs on that matter — a decision supported by the weight of California case law, and importantly by on-point precedent from her own court, the First District of the California Court of Appeal.
So whereas it made sense in the first brief to argue that Judge Wiss should not dismiss the case because the law did not support it, it was a good move to argue in the second brief that Judge Wiss should not dismiss the case because the alleged facts did not support it.
Comparing Google And Uber
Ellis v. Google is interesting to compare against another presumptive class action recently disposed of on demurrer by Judge Wiss: Goncharov v. Uber Technologies, Inc. There, after three rounds of demurrers, the plaintiffs declined to amend their Second Amended Complaint and instead chose to fight the subsequent dismissal via an appeal. But the plaintiffs lost on appeal — Judge Wiss’s decision was affirmed.
Interestingly, the Goncharov opposition brief looked to Clerk more like the first Ellis opposition brief than the second Ellis opposition brief: the Cases Sharing Arguments dimension was far more favorable to defendants, and the Outcomes of Cited Cases dimension was not as one sided.
This raises an interesting question: do some judges respond more favorably to balanced argumentation, while other judges respond more favorably to one-sided argumentation?
We’ve previously noted that when it comes to Judge Analytics, it’s important to understand both the broad brushstrokes of a judge’s biases (the “forest”) and the smaller details where impactful insights can be gleaned (the “trees”). Although we can’t yet say which judges respond best to which style of argumentation, Clerk can now help us find the answer.
It’ll be interesting to see what the plaintiffs have in store for their Motion for Class Certification. Stay tuned for more!
