Professor Sergio Campos: Fresh Perspectives on Civil Procedure

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Professor Sergio J. Campos enjoys challenging the accepted wisdom. “I like to take something that is considered common sense and take a fresh look at the concept,” he said. “I’m also a great believer in the power of creativity—in students, lawyers, and the courts—to find appropriate remedies for civil disputes.”

Since joining the School of Law faculty in 2009, Campos has focused his teaching and research on civil procedure, federal courts, and remedies. “It’s so important to know procedure to be an effective attorney,” he said. “The best intentions of the law don’t work unless you implement the right procedures. One of my favorite quotes is from U.S. Rep. John Dingell in 1983: ’I’ll let you write the substance…you let me write the procedure, and I’ll screw you every time.’”

Campos says the U.S. Supreme Court has been paying more attention to procedure in the past decade since John Roberts became Chief Justice. “For instance, the Court has ruled on how much you have to say in a complaint to go to the next step, making it harder for civil rights and class action plaintiffs."


“If you are worried about losing $100 million on 100,000 claims of $1,000 each, you have a great incentive to hire the best possible expert and most expensive law firm,” Campos said. “But if you give each plaintiff a day in court, it will be hard for that individual to hire an attorney and an expert with commensurate experience, even if the case is handled on a contingency fee.”


In recent years, Campos has contributed several guest articles to the SCOTUSblog, including a 2011 discussion of Wal-Mart Stores, Inc. v. Dukes—one of the court’s most significant class action decisions in decades.

“In WalMart, the court rejected a class action that alleged that WalMart deliberately looked the other way while local store managers discriminated against female employees in ’literally millions of employment decisions,’” Campos wrote. “A majority concluded, among other things, that the proposed class had failed to show a common ’glue holding the alleged reasons for all those decisions together,’ apart from ’the bare existence of delegated discretion.’ The court found an absence of a ’general policy of discrimination’ in part because it rejected expert testimony that WalMart fostered a ’strong corporate culture’ that could instill gender bias in all of its managers.”

Although the Ninth Circuit Court of Appeals had credited this expert testimony without the need for a Daubert hearing at the class certification stage, the court said such a hearing on expert testimony would have been appropriate, potentially adding another step to a plaintiff’s procedure, Campos said. “We will now see whether the court’s rejection will have an impact on class actions.” 

A DIFFERENT PATH

Campos grew up in a Mexican-American family in Galveston, Texas. His father Francisco was an immigrant who worked as a longshoreman, and his mother Helen was a librarian. As a high school student, Campos didn’t take part in student government or debate—two traditional extracurricular activities for future lawyers. In fact, Campos did not consider law as a career until Dan Morales was elected attorney general of Texas in 1991. “Seeing a Mexican-American in such a high position inspired me to go into law,” he said.

After earning his bachelor’s degree at Harvard College and his Juris Doctor from Yale Law School, Campos worked for three years as a commercial litigator in Boston.

“When I was practicing law, I would enjoy working the cases, developing legal strategies and battling wits with the other side,” he said. “But there were many times when I would take a step back and wonder, ’Why do we have this rule?’ I could imagine different rules that could come into play, and I would write them down so I could think about them in the future. Eventually, I had a big file of half-baked ideas, some of which have now developed into academic articles and papers.”

As a scholar, Campos is a strong believer in the power of the subconscious to come up with creative answers to problems in law. “There’s been a lot of research on cognitive psychology that shows the benefits of taking time to reflect, to go for a walk or just relax and think about something other than school or the job.”

After practicing as a litigator, Campos became a Charles Hamilton Houston Fellow at Harvard Law School and then clerked for the Honorable Juan R. Torruella of the U.S. Court of Appeals for the First Circuit and the Honorable Patti B. Saris of the U.S. District Court for the District of Massachusetts.

While in Boston, Campos met his now wife, Nicole Gastineau Campos, a health policy researcher at Harvard University’s Center for Health Decision Science. Along with helping to raise their two children, Campus enjoys reading books like Den of Thieves about the Michael Milken junk bond scandal in the 1980s. “Truth is often more fascinating than fiction,” he says.

Campos draws on those lessons from Wall Street in teaching Miami Law students about finance, accounting, and economic theory in his courses. “You have to know about financial incentives in order to understand settlements and be responsive to your clients’ needs,” he said. “If you represent businesses or non-profits you have to be careful about how you settle a suit, considering issues whether a lump sum or a series of payments makes sense, as well as interest rates and the ability to use financial leverage.”

A DIFFERENT PERSPECTIVE

In reflecting on civil procedures, Campos takes a different perspective on the due process principle that “everyone is entitled to a day in court” to tell their side of the story, present evidence, and defend their position. “This is certainly true in most cases, such as criminal prosecution and defense or civil litigation,” he said. “But when I was practicing commercial litigation, I realized that a day in court may be counterproductive when there is a wide disparity between the resources of an individual plaintiff and the other party.”

In products liability, toxic torts or other types of class actions, a manufacturer might be worried about hundreds or thousands of people with the exact claim, Campos said.

In that situation, it’s likely that many plaintiffs agree to a modest settlement, and the defendant can succeed with a divide-and-conquer strategy, Campos said. “By bundling the claims, class actions can level the playing field between plaintiffs and defendants. We need to protect this type of civil procedure to ensure that defendants face significant financial consequences if they manufacture and distribute unsafe products in our society.”