Even a first glance shows that the litigation landscape has changed.  Iqbal has been cited roughly 25,000 times in the past two years.  Professor Brescia focused his study on the outcome of motions to dismiss for inadequate specificity in civil rights cases based on employment and/or housing discrimination (634 reported decisions).

The statistical results?  (1) An 11% increase in dismissal rates (pre-Twombly the dismissal rate for all cases was 61% while the post-Iqbal dismissal rate was 72%); and (2) A 500% increase in the likelihood that a plaintiff would face a motion to dismiss challenging the sufficiency of the pleadings.    

After looking closely at the substance of the reported decisions, Professor Brescia also noticed an interesting trend.  Even when courts invoked the Twombly/Iqbal plausibility standard, they often were not actually relying on the new plausibility standard.  Instead, courts appeared to be relying more heavily on the subjective aspects of the plausibility test and dismissing cases based on these subjective judgments even though the same cases might have survived pre-Iqbal. 

After reading Brescia’s article, we’re left wondering which circuit will be the first to appropriate his phrase and announce that “plausibility, like beauty, is in the eye of the beholder.”  See e.g., U.S. v. Miranda-Lopez, 532 F.3d 1034, 1039 (9th Cir. 2008) (“legislative history, like beauty, is in the eye of the beholder”); U.S. v. McCoy, 513 F.3d 405, 414 (4th Cir. 2008) (“innocence, like beauty, is in the eye of the beholder”); Freeman v. Potter, 200 Fed. Appx 439, 444 (6th Cir. 2006) (“‘Prestige,’ much like beauty, is in the eye of the beholder.”); Steger v. Franco, Inc., 228 F.3d 889, 895-96 (8th Cir. 2000) (“‘readily achievable’ . . . like the term beauty . . . is in the eye of the beholder”); B. Sanfield, Inc. v. Finlay Fine Jewelry Corp., 168 F.3d 967, 974 (“Deception, like beauty, is in the eye of the beholder.”); Animal Legal Defense Fund v. Glickman, 154 F.3d 426, 448 (D.C. Cir. 1998) (“Humaneness, like beauty, is in the eye of the beholder.”); U.S. v. Jerez, 108 F.3d 684, 716 (7th Cir. 1997) (Coffey, J., dissenting) (“‘the middle of the night,’ like beauty, is in the eye of the beholder”); Myers v. Gulf Oil Corp., 731 F.2d 281, 281 (5th Cir. 1984) (“succinctness, no less than beauty, is in the eye of the beholder”); U.S. ex rel. Butler v. Maroney, 319 F.2d 622 (3rd Cir. 1963) (Kalodner, J., dissenting) (“due process, like beauty, is in the eye of the beholder”).

You can download the paper here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1941294

There are pros and cons to each system of justice, which controversy is beyond the scope of today’s discussion. The adversary system is the system we work within, and we strive to be effective and powerful advocates for our clients’ positions. In the context of many of our family law cases, however, the adversarial system, with its emphasis on opponents and opposition, is directly contradictory to the outcome for which most divorcing couples hope.

The logo for the law firm of Mohrman & Schofield is an olive branch. We chose it when we founded the firm because of the partners’ shared philosophy about the practice of law, and family law in particular. Our clients come to us with problems to be solved. These problems have disrupted their lives and cause them distress and often grief. Our goal as legal advocates is to bring peace to our clients’ lives. We strive to do this by effective advocacy for their legal position, as well as by striving to practice law within the adversarial system in as peaceful, ethical, and civil manner as we can. For our family law clients in particular, we hope that our approach helps them move forward in their ongoing family responsibilities and find opportunities for personal reevaluation, growth, and progress while undergoing a legal process that typically has only negative connotations.

James H. Faust once said, “Before the wounds of injustice can heal, there must first come a feeling of peace. So, in a sense, a lawyer who helps make peace becomes something of a healer.” Our logo—the olive branch—is a reminder to us of our desire to bring peace into the lives of our clients. Sometimes we can do this by reducing the tension during the process of litigation and by facilitating settlements that are satisfactory to both parties. Sometimes we can do this by bringing litigated closure to a case at trial or on appeal, which allows our clients to move on with their lives. Either way, our philosophy is to use our skill and experience to help our clients solve problems within the adversarial system of justice in which we work without being unnecessarily or unprofessionally adversarial.