Key Takeaways:

• At the ABA Antitrust Spring Meeting’s “Views from the Bench” panel discussion, Judges Richard F. Boulware of the District of Nevada, Denise L. Cote of the Southern District of New York, Paul L. Friedman of the District of Columbia and Yvonne Gonzalez Rogers of the Northern District of California repeated a common desire:  Judges wish antitrust lawyers and their experts would do a better job explaining the factual and legal issues in their cases. 
• The panelists focused primarily on the importance of economic experts who could explain the issues clearly to a lay person.
• There are several other important methods for clearly explaining the economic, factual, and legal issues in an antitrust case.  Parties should use their pleadings, briefs, experts, and in-court opportunities to explain complicated topics to the court in a clear and concise way, focus on the main issues, and provide citations to useful background literature, without clouding things with extraneous issues.

Panelists echoed a familiar tune at the 2023 ABA Antitrust Spring Meeting’s “Views from the Bench”:  Judges wish antitrust lawyers and their expert witnesses would do a better job of explaining and narrowing down the factual and legal issues in their cases.[1]  The problems associated with the opacity of antitrust cases come up seemingly every time generalist judges speak about antitrust law.  But while practitioners might roll their eyes at what sounds to them like a broken record, the fact is that judges continue to raise these issues because some members of the antitrust bar have not listened. 

Antitrust cases are complicated.  A former colleague once told an associate that antitrust law “is just two statutes.”  Of course, there are actually many more than “just two statutes,” and each one is accompanied by a century of dense case law and complicated balancing tests.  Antitrust law also involves a cacophony of strange legal, business, and economic terms – such as “tying arrangements,” “loyalty rebates,” “group boycotts,” “the demand curve,” and “market definition” – that, while common tongue for practitioners, are foreign and opaque to generalists.  On top of this byzantine legal framework, antitrust cases require a deep understanding of often-complex industries, products, business arrangements, economic concepts, and consumer behaviors, and involve numerous complex relationships between manufacturers, distributors, retailers, consultants, purchasers (direct and indirect), and end consumers.  Lawyers often forget that they learned the legal and factual issues of their cases through hundreds of hours of work – time that busy Article III judges do not have.

So what can antitrust practitioners do to better explain their cases to the bench so that we might finally hear a new song at our conferences?  Below are just some of the effective techniques we have used in our practice, many of which were echoed by the panelists.