It may be that the trial lawyers are able to extort huge sums of money from deep-pocketed corporations, but that's only because liberal judges make it legal to do so. That was the point driven home once again in a bitterly divided decision issued on Tuesday by a panel of the U.S. Court of Appeals for the Ninth Circuit.

It may be that the trial lawyers are able to extort huge sums of money from deep-pocketed corporations, but that's only because liberal judges make it legal to do so.  That was the point driven home once again in a bitterly divided decision issued on Tuesday by a panel of the U.S. Court of Appeals for the Ninth Circuit.

Specifically, in Tuesday's ruling, two Democrat-appointed judges on what many consider to be the most liberal federal appeals court in the country gave trial lawyers the go ahead for the largest class action employment discrimination lawsuit in American history.  Sounds like a big deal, right?  Well, the numbers show just how big a deal it really is.

The class of plaintiffs approved by the two judges includes each and every woman who has ever worked at a Wal-Mart or Sam's Club store nationwide over the past eight years.  According to the pair of judges, the class "encompasses approximately 1.5 million employees, both salaried and hourly, with a range of positions, who are or were employed at one or more of Wal-Mart's 3,400 stores across the country."  Or, as the dissenting judge more pointedly explained, "[t]he district court calls this class certification 'historic,' a euphemism for 'unprecedented.'"

Indeed, the massive size of the class, and the "unprecedented" risk it poses to Wal-Mart, threatens to wreak "historic" havoc on the American system of civil justice.  Going on the record with the press following the ruling, lead plaintiffs' lawyer Brad Seligman noted that the class probably includes more "more than two million [women] now," and that "simple math ... indicate[s] that the losses to women are in the billions."  Not to mention that is before adding on punitive damages, which Seligman and his trial lawyer friends are also seeking.

But it's not only a matter of the huge amount of money at stake and the countless number of plaintiffs involved that makes this decision, this lawsuit such a monumental mistake.  It's the combination of those two factors in a single legal proceeding, with the winner taking all, despite the practical reality that each act of discrimination (if any) occurs under different circumstances and involves different people.

This is the very point made by the dissenting judge who was unwilling to go along with Tuesday's "historic," or in his words "unprecedented," decision. 

"Some plaintiffs work at Wal-Mart, some do not," Judge Andrew Kleinfeld explained.  And, he went on and on and on: "Some were promoted to management, some were not.  Some claim sex discrimination, some claim mixed motive race and sex discrimination, some appear to claim race discrimination, some claim retaliation, and some appear to claim unfairness but not discrimination.  Some plead a prima facie case, some do not.  Some are vulnerable to defenses like misconduct, some are not.  They worked at different stores and complain of different actions taken by different managers." 

In other words, by bringing all of these different people and their various complaints together in a single lawsuit, how can Wal-Mart ever defend itself?  And for that matter, how can each one of these different plaintiffs' claims be judged fairly on its own merits?

The answers are simple, Wal-Mart can't, and each plaintiff's claim won't.  But that doesn't bother the trial lawyers who brought this lawsuit in the first place because justice was never their goal.  Rather, a jackpot payday was. 

By combining all of these separate plaintiffs and their different claims into one lawsuit, the trial lawyers have succeeded in giving themselves the bargaining chip they needed to extort a sizeable settlement from a corporation that needs to avoid the no-win situation of defending against millions of claims in a single case.

But the interest of the judges -- all of them -- should have been justice.  There can be no doubt but that the judges knew what the trial lawyers would accomplish with Tuesday's ruling, but a majority of two judges approved the trial lawyers' plan anyway.  The headlines and the trial lawyers tell us that the decision could cost Wal-Mart billions, but it cost the rest of us justice.