Saturday, January 4, 2014
This morning I attended the Civil Procedure Section program, "Innovations in the District Courts: How Judges and Districts Can Address Cost, Delay and Access to Justice." Moderated by Dean Matthew Diller, it was a lively panel of four federal judges:
Judge Julie Robinson, D. Kan.
Judge Shira Scheindlin, S.D.N.Y.
Judge Lois Bloom, Magistrate Judge, E.D.N.Y.
Judge William Young, D. Mass.
Judge Robinson is Chair of the National Committee of the Judicial Conference of the United States and chaired the Court Administration and Case Management Committee. "My committee, as opposed to the Rules Committee, works very quickly," she said.
This committee publishes and maintains the Civil Litigation Management Manual (not the Complex Litigation Manual) and collects best practices at the district court level, focusing on what she called "non-complex litigation." For example, Judge Robinson cited Judge Koetl's pilot project focusing on the case management of employment cases. She characterized employment cases as "non-complex," but stated that they cause "operational pain." Among other items, the pilot calls for reciprocal exchange of information ("the universe") at the beginning of a case. Judge Robinson's committee also oversees the pilot program for patent cases.
Her committee is also improving the functionality of the CM/ECF system to manage caseloads, not just cases. She referred to a "three-year benchmark" for terminating civil cases, and stated that judges have a responsibility to the federal system to move cases. Her committee focuses on the most congested courts in the system on the civil side of the docket. The committee studies why these courts are congested and what kinds of resources can be deployed to help.
Judge Scheindlin described the ongoing pilot project in the Southern District of New York for complex cases. She believes that many of the innovations are not necessary for the run-of-the-mill, non-complex cases. The subject areas for this pilot project are stockholders' suits, products liability, antitrust, trademark, patent, securities, all class actions, and multidistrict litigation. She said that FLSA cases are now about 10% of the project.
To inform the pilot project, the FJC conducted a survey of attorneys about case management. I believe the results of this survey are published, and Judge Scheindlin spoke very quickly about a number of the survey findings. Just a few items that I managed to get down were that 60% of attorneys said they had a 26(f) conference, and said that the 26(f) conference had little effect on cost or fairness (or actually increased cost). Attorneys reported that discovery was stayed in about 30% of cases pending a motion to dismiss. Also, attorney reported that there was no ESI involved in about 40% of cases, a result Judge Scheindlin found surprising.
Judge Scheindlin described the components of the pilot project in some detail, which I will only highlight here. Expensive and voluminous privilege logs are downplayed because they are now "unnecessary" with Rule 502 of the Federal Rules of Evidence.
Document discovery, but not depositions, should presumptively proceed while a motion to dismiss is pending. A sample of documents should be provided to the judge to make privilege rulings. Interestingly, Judge Scheindlin advocated a "pre-motion conference" for virtually all motions, in which the attorneys summarize what they intend to argue, and the judge gives feedback as to what should be briefed, what argument is a loser, etc. Oral argument on all substantive motions is recommended, along with very strictly-enforced page limitations on briefs (25, 25, and 10).
Judge Scheindlin later suggested that summary judgment was overused, and that a judge's decision will never have the same credibility as the judgment of the community in a jury trial. Noting the "huge amount" of papers in a summary judgment motion, she sometimes asks herself, "What are these lawyers thinking? They could have tried this case" in the time it took to prepare the motion.
Judge Lois Bloom, who oversees all pro se litigation in the Southern District of New York, spoke on access to justice and pro se litigation. She began by noting that US statute allows parties to conduct their own cases personally, and that the court house door is open to everyone. Judge Bloom stated that approximately 25% of federal district courts' civil caseload involves pro se litigants, and that percentage rises to 40% at the appellate court level. Approximately 96% of prisoner litigation is pro se, but less than half of the pro se cases are now brought by prisoners.
Examples of these pro se cases include, on the plaintiff side, employment discrimination cases and fair debt collection practices cases, and on the defendant side, student loan recovery and illegal downloading. The same FRCP apply, but there are some special rules for pro se cases. Judge Bloom created special form orders such as to get initial disclosures in employment cases.
She stated that she "would rather have an earnest pro se litigant than a bad lawyer, any day." To give people their day in court means holding repeated conferences. She shows concern for ordinary citizens, stating that "every week" she gets more cases about "the bad things that happen to people" on a stop-and-frisk.
Judge Bloom recognizes a "strong link between procedural justice and how people perceive the courts." She hopes law schools will highlight the fact that 25% of civil cases are now pro se, and encourages Civil Procedure professors to keep students' eyes on the ultimate goals of litigation, not the discrete procedural steps along the way.
Judge Young, batting cleanup, warned he might "come off as a skunk at the wedding." He endorsed his colleagues' suggestions, but stated in general, "We have so deconstructed the role of the trial judge" that "we think the goal is through-put," or getting the cases through. But the goal is adjudication. "That is what is special about judges." Settlement and mediated resolution are by-products of the drive towards trial. Trial is what focuses the litigants' and the trial lawyers' minds.
He stated that the jury is "dying." In the last eight years a person's chance of being seated as a juror in federal court has declined more than 30%. Federal judges are on the bench less than ever. The average district court judge tries less than one case a month, or about eight to nine trials a year. So there's less fact-finding, which "foreshadows the twilight of judicial independence." He referred the audience to an article by Judge Lee Rosenthal and Professor Steven Gensler about "the reappearing judge," and to an article by Judge Young in Penn State Law Review.
Judge Young said there was a need to focus on enhancing our jury system. He noted that the strategic plan for the US District Courts only mentions jurors twice. Jurors should be allowed to take notes and ask questions as a matter of course. Moreover, even if the statute isn't changed, individual judges can require 12-person jurors. Social science research suggests that the best size for small-group decision-making is 10 to 14 persons. Judge Young believes there is a need for scholarship on issues relating to juries, including the American juror as a constitutional officer as to which Congress should not be able to cut off funding.
Judge Young said that "we ought to be thinking of ourselves more as federal courts than as individual judges," adding that "injustice anywhere in the United States is injustice everywhere." He praised the committee on inter-circuit assignment; for example, thirty-two judges were lined up to try tobacco cases in the Middle District of Florida. He advocated for more inter-circuit assignment of cases.
Judge Young also stated that "although we deny it, the grants of summary judgment are too frequent." He called affidavits the "Potemkin villages" of modern procedure, all facade and nothing inside. He also branded status conferences as "a terrible waste of time," suggesting instead that "you set the key dates and you don't move them." He also said that people don't necessarily want a trial: they want the reasonable expectation of a trial. That is what "brings the economically powerful to the bargaining table."
Dean Diller then asked the panelists about the proposed amendments to the FRCP.
Judge Bloom responded that she believed that rules committees were "self-perpetuating," and that we needed to get away from the idea that the rules need to be amended every few years. She thinks that the new proposals are being pushed by defense attorneys who want to cut back on plaintiffs' access. In the Eastern District of New York, where civil cases are automatically assigned to a magistrate judge until the time of trial, "it is a real outlier" that needs any revision to the rules. She believes that the "proportionality" amendment will be a "Pandora's box."
Judge Robinson agreed that the proposed amendments would cause at least as much "operational pain" as they would cure.
Professor Liz Schneider from Brooklyn Law School posed a hypothetical: what if the SDNY passed a local rule that "we discourage the filing and granting of summary judgment motions." Judge Scheindlin indicated that many law firms would not be receptive because it would hurt their revenues. "If the lawyers cared about cost, they wouldn't do summary judgment motions."