The View from the Whistleblower Bench


Judges can be a case study of their own. They are fascinating people and many of them have their own little quirks. And lawyers have plenty of opinions on them, from the flattering, to the . . . well, let’s say I’ve heard some opinions on judges that are followed by a quick “Don’t print that!” 

I know people who’ve clerked for judges. Some talk about fun judges who take their clerks on their boat and others who demand a perfectly poured glass of Sprite on their desk when they come in to their office.

But all lawyers want to get into the minds of judges and understand how they make their decisions. There are few opportunities for that.

A few weeks ago, I used Bloomberg Law’s analytics to write a piece for our Know Your Judge series about Amy Berman Jackson, in the news recently for sending Paul Manfort to jail while he awaits trial. On Friday, at the 12th National Institute on the Civil False Claims Act and Qui Tam Enforcement in Washington, I got to hear judges discuss how they view false claims litigation.

Judges Sara Ellis and Manish Shah, of the U.S. District Court for the Northern District of Illinois, discussed their desire for an informed discovery plan from counsel on both sides in whistleblower cases.

On the issue of whether the use of sampling data is appropriate, Shah said a debate courts are wrestling with is whether sampling is relevant to liability and damages. Ellis said she’s ok with allowing data sampling if a whistleblower can use the data to identify the extent of the fraud. 

Both judges indicated they’d give counsel on both sides leniency in their efforts to collect information, knowing the difficulty of gathering facts in whistleblower actions. 

And on the crucial issue of Escobar, the Supreme Court’s most recent high-profile FCA ruling, Ellis said she expects its materiality standards to be addressed by the high court again. She seemed to hope the court would reconsider it to provide more guidance to judges such as herself. 

Judge Shah took time to remind the gathered lawyers that judges are generalists who interpret many types of laws. That’s an important consideration for lawyers dealing with such complicated material.

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