Thursday, August 14, 2014
Echoing the May 2, 2014 Report to the Standing Committee by the Advisory Committee on Civil Rules, the chair of the Advisory Committee, Judge David G. Campbell, has signaled that he would adopt the position of the proposed change to FRCP 37(e). Vicente v. City of Prescott, No. CV–11–08204–PCT–DGC (D. Ariz. Aug. 8, 2014), 2014 WL 3894131.
The proposed amendment to Rule 37(e) provides:
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court may:
(1) upon finding prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Thus, the proposal rejects cases that permit an adverse inference instruction on a showing of negligence or gross negligence. As the Advisory Committee reported to the Standing Committee:
Circuits that permit adverse inference instructions on a showing of negligence or gross negligence adopt [the] rationale . . . that the adverse inference restores the evidentiary balance, and that the party that lost the information should bear the risk that it was unfavorable. See, e.g., Residential Funding Corp. v. DeGeorge Finan. Corp., 306 F.3d 99 (2d Cir. 2002). Although this approach has some logical appeal, the Advisory Committee has several concerns with this approach when applied to ESI. First, negligently lost information may have been favorable or unfavorable to the party that lost it. Consequently, an adverse inference may do far more than restore the evidentiary balance; it may tip the balance in ways the lost evidence never would have. (click here and go to page 314)
In Vicente, Judge Campbell stated that "the Court tends to believe that such an instruction requires a showing of bad faith," although the case did not require a decision on the point. (n. 10) Footnote 10 goes on to use the sentences quoted above almost verbatim, but without attribution.
Tuesday, June 17, 2014
In the continuing worldwide drama over Argentina's 2001 debt default, Argentina loses another round. Republic of Argentina v. NML Capital, Ltd., No. 12-842 (U.S. June 16, 2014). Its creditor, NML Capital, which Argentina owes about $2.5 billion, has pursued postjudgment execution on Argentina's property since 2003. In 2010, NML subpoenaed two nonparty banks, Bank of America and an Argentinian bank with a branch in New York City. The subpoenas sought documents relating to accounts maintained by Argentina.
Argentina and BoA moved to quash the BoA subpoena (the Argentinian bank just didn't comply), and NML moved to compel. The district court granted the motion to compel, and the Second Circuit affirmed.
The Supreme Court also affirmed, rejecting Argentina's argument that the Foreign Sovereign Immunities Act prohibited discovery of Argentina's extraterritorial assets. Before its discussion of the FSIA, the Court discussed a Federal Rule of Civil Procedure -- Rule 69 -- that is rarely, if ever, mentioned in first-year civil procedure casebooks. (Hint, hint, casebook authors!) The Court noted that "[t]he rules governing discovery in postjudgment execution proceedings are quite permissive," citing Rule 69(a)(2), which allows a judgment creditor to take discovery "from any person -- including the judgment debtor -- as provided in the rules or by the procedure of the state where the court is located." The Court assumed without deciding that "in a run-of-the-mill execution proceeding [one where the judgment debtor is not a foreign state] . . . the district court would have been within its discretion to order the discovery from third-party banks about the judgment debtor's assets located outside the United States."
The question was thus whether the FSIA required a different result when the judgment debtor was, in fact, a foreign state. The FSIA, passed in 1976, confers two kinds of immunity on foreign states, jurisdictional (which Argentina waived) and execution immunity, which immunizes property in the United States of a foreign state from attachment and execution, with some exceptions.
"There is no third provision forbidding or limiting disocvery in aid of execution of a foreign-sovereign judgment debtor's assets," notes Justice Scalia for the majority. "[T]he reason for these subpoenas is that NML does not yet know what property Argentina has and where it is, let alone whether it is executable under the relevant jurisiction's law." The Court also dismissed concerns about international relations, suggesting that such an argument was better addressed to Congress.
Justice Ginsburg dissented. Justice Sotomayor took no part.
Saturday, June 7, 2014
The Standing Committee met on May 29-30, 2014 in D.C. and unanimously approved the amendments as they were modified by the Advisory Committee at its meeting in April.
Hat tip: Center for Constitutional Litigation
Wednesday, May 28, 2014
Tired of using Mosley v. General Motors for an illustration of joinder under Rule 20? The D.C. Circuit has provided a great new case. The court quaintly began its opinion:
Generally speaking, our federal judicial system and the procedural rules that govern it work well, allowing parties to resolve their disputes with one another fairly and efficiently. But sometimes individuals seek to manipulate judicial procedures to serve their own improper ends. This case calls upon us to evaluate—and put a stop to— one litigant’s attempt to do just that.
AF Holdings, LLC v. Does 1-1058, No. 12-7135 (D.C. Cir. May 27, 2014).
Plaintiff AF Holdings, represented by a law firm related to one that was called a "porno-trolling collective" in another case, allegedly (there was some question of forgery) acquired the copyright to a pornographic film called "Popular Demand." It sued 1,058 "John Doe" defendants in federal court in D.C. for copyright infringement for downloading the film on a file-sharing service known as BitTorrent.
Moving for leave to take immediate discovery, AF Holdings then sought to serve subpoenas on the five Internet service providers linked to the 1,058 IP addresses it had identified: Cox Communications, Verizon, Comcast, AT&T, and Bright House Networks. The district court granted the motion . . . . The providers refused to comply. Invoking Federal Rule of Civil Procedure 45(d)(3)(A), . . . they asserted that the administrative expense involved was necessarily an “undue burden” because AF Holdings had failed to establish that the court would have personal jurisdiction over the defendants or that venue would lie in this district. . . . The providers also argued that any burden was necessarily undue because AF Holdings had failed to provide any reason to think that joinder of these 1,058 defendants in one action was proper. The district court rejected these arguments, . . . [but] certified its order for immediate appeal.
The D.C. Circuit vacated, holding that AF Holdings had failed to make a threshold showing of a good faith belief that the discovery would enable it to show that the court had personal jurisdiction over the unknown defendants; thus, the information sought from the service providers was not relevant.
The court then turned "to the question of joinder, which provides a separate and independent ground for reversal":
. . . Federal Rule of Civil Procedure 20(a)(2) sets forth that multiple defendants may be joined in one action if the plaintiff seeks relief “with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and “any question of law or fact common to all defendants will arise in the action.” In a multi-Doe copyright infringement lawsuit such as this, at least one issue of law or fact will generally be common to all defendants—here, that issue might be whether AF Holdings has a valid copyright in Popular Demand. But whether all of these Doe defendants could possibly have been a part of the same “transaction, occurrence, or series of transactions or occurrences” so as to support joinder is a more difficult question. . . . For purposes of this case, we may assume that two individuals who participate in the same swarm [a type of peer-to-peer file sharing] at the same time are part of the same series of transactions within the meaning of Rule 20(a)(2). In that circumstance, the individuals might well be actively sharing a file with one another, uploading and downloading pieces of the copyrighted work from the other members of the swarm. But AF Holdings has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time.
The D.C. Circuit left the question of sanctions to the district court on remand.
Monday, April 28, 2014
The Supreme Court of the United States has approved an amendment to Rule 77 that, in the words of the Standing Committee on Rules of Practice and Procedure, “corrects a cross-reference to Rule 6(a) that should have been changed when Rule 6(a) was amended in 2009.” Unless Congress intervenes, the amendment will take effect on December 1, 2014.
Adjust your syllabi accordingly.
If you’re interested in the more controversial batch of proposed amendments that would revise the discovery rules and eliminate the Forms, the Supreme Court is not likely to be acting on those until Spring 2015. And there are still a number of steps in the process, the next of which is the Standing Committee’s meeting in May.
Wednesday, April 16, 2014
We covered earlier the agenda for the Civil Rules Advisory Committee’s April meeting, which took place in Portland, Oregon last week and was an important step for the recently proposed amendments to the Federal Rules of Civil Procedure. Bloomberg BNA’s U.S. Law Week has this report on the result of the meeting.
The Advisory Committee’s recommendations go next to the Standing Committee on the Rules of Practice and Procedure, which will meet in May.
Hat Tip: Tom Rowe
Wednesday, April 9, 2014
Alex Reinert (Cardozo) has published on SSRN a draft of his article, The Burdens of Pleading, which will be published in the University of Pennsylvania Law Review. Here is the abstract:
The changes to pleading doctrine wrought by Bell Atlantic v. Twombly and Ashcroft v. Iqbal have been criticized on many grounds. As many commentators have noted, the plausibility pleading doctrine introduced by these cases is consistent with other procedural reforms that have the effect of limiting access of putative plaintiffs to federal civil adjudication. In this Article, I argue that Twombly and Iqbal are more than just the most recent examples of anti-litigation reforms. Plausibility pleading asks federal courts – for the first time since the advent of the Federal Rules of Civil Procedure – to use their "judicial experience and common sense" to assess the likelihood of a claim’s success prior to discovery. But the very characteristics of the procedural changes leading up to Twombly and Iqbal – fewer trials, an increase in private adjudication such as arbitration, pervasive secrecy, and increased use of summary judgment – also make it far less likely that judges will have the experience necessary to reliably apply plausibility pleading. In the absence of relevant information, judges are likely to fall back on heuristics that will take them farther from an accurate decision on the merits. The result, I contend –one that is confirmed by the empirical data available to date – will be an increased dismissal of cases that is essentially random rather than merit-based.
Thursday, April 3, 2014
As we’ve been covering, the Judicial Conference Committee on Rules of Practice and Procedure (a.k.a. the Standing Committee) has proposed a significant batch of amendments to the Federal Rules of Civil Procedure. The public comment period on that proposal ended in February, with over 2,300 comments submitted.
The next step in the process is a meeting of the Civil Rules Advisory Committee that will take place on April 10-11 in Portland, Oregon. As covered earlier, the agenda book for that meeting has now been posted on the US Courts website and is available here. At this meeting, the Civil Rules Committee will make recommendations to the Standing Committee, which will meet at the end of May.
The materials in the 580-page agenda book suggest that there could be some important changes to the original package of amendments that was circulated last August. Most significantly, the Duke Conference Subcommittee (named for a conference convened by the Civil Rules Advisory Committee in May 2010) recommends withdrawal of amendments that would have (1) lowered the presumptive numbers of depositions and interrogatories, (2) limited the presumptive number of requests to admit, and (3) reduced the presumptive length of depositions.
Abandoning these proposals is certainly a step in the right direction. Unfortunately, the subcommittees recommend moving forward with other troubling changes, including (1) amendments to the scope of discovery under Rule 26(b), and (2) the abrogation of Rule 84 and the Forms that appear in the Civil Rules Appendix (which are especially significant with regard to pleading standards).
In February, some colleagues and I submitted a joint comment opposing these changes. That comment was submitted by myself, Helen Hershkoff (NYU), Lonny Hoffman (Houston), Alex Reinert (Cardozo), Elizabeth Schneider (Brooklyn), and David Shapiro (Harvard) [Direct link to the pdf available here]. Thereafter, Janet Alexander (Stanford), Judith Resnik (Yale), and Steve Yeazell (UCLA) submitted a letter – on behalf of themselves and 168 other law professors – supporting our comments in opposition to these changes [direct link to the pdf available here]. Numerous other law professors have also submitted critical comments (e.g., here, here, here, here, here, here, here, and here).
I hope these critiques will prompt the various committees to reconsider these problematic proposals. As we stated in the introduction to our joint comment:
As in 1993 and in 2000, evidence of system-wide, cost-multiplying abuse does not exist, and the proposed amendments are not designed to address the small subset of problematic cases that appear to be driving the Rule changes. We anticipate that, as with past Rule changes, untargeted amendments will fail to eliminate complaints about the small segment of high-cost litigation that elicits headlines about litigation gone wild; instead they will create unnecessary barriers to relief in meritorious cases, waste judicial resources, and drive up the cost of civil justice. The amendments are unnecessary, unwarranted, and counterproductive.*** In our view, the amendments are likely to spawn confusion and create incentives for wasteful discovery disputes. Even more troubling, by increasing costs and decreasing information flow, the proposed amendments are likely to undermine meaningful access to the courts and to impede enforcement of federal- and state-recognized substantive rights.
Tuesday, April 1, 2014
Rule 52(a) of the Federal Rules of Civil Procedure provides that in matters tried to a district court, the court’s “[f]indings of fact ... must not be set aside unless clearly erroneous.”
The question presented is as follows:
Whether a district court's factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires (and as the panel explicitly did in this case), or only for clear error, as Rule 52(a) requires.
More info available at SCOTUSblog.
Wednesday, March 26, 2014
Here’s the transcript of today’s Supreme Court oral argument in Wood v. Moss. It’s a Bivens case brought by plaintiffs who had been protesting against President George W. Bush during his visit to a restaurant in Oregon. They allege that the defendants, who were secret service agents, engaged in unconstitutional viewpoint discrimination by moving them farther away from the President than a similar group that was expressing support for the President.
The crux of the defendants’ position is that they are protected by qualified immunity, but the case could have ramifications for pleading standards more generally. The argument included quite a bit on Iqbal, and there were several questions about the discovery that would likely ensue if the claims were allowed to move forward.
PS: Here is an analysis of the oral argument by Lyle Denniston (SCOTUSblog).
Tuesday, March 25, 2014
Monday, February 24, 2014
Tony Mauro at the National Law Journal has an article this morning entitled Lawyers Spar Over Discovery Rules. He reports, "More than 2,200 lawyers and others took the time in recent weeks to file sometimes impassioned comments with a committee of the Judicial Conference over proposals to narrow pretrial discovery and ease sanctions for failure to preserve documents. The deadline for comments was Feb. 18."
Saturday, February 15, 2014
Today was, originally, the deadline for submitting comments on the proposed amendments to the Federal Rules of Civil Procedure. The deadline has been extended to Tuesday, Feb. 18. The following announcement appears on the U.S. Courts website:
NOTE: To accommodate scheduled website maintenance, the deadline for submitting public comments has been extended. Comments must be submitted by 11:59 PM ET on February 18, 2014.
Friday, February 14, 2014
Over on the ACS blog is a post by Prof. Brooke Coleman (Seattle) entitled The Real Cost of Litigation Reform: Justice, Not Discovery Costs, Are at Stake, which discusses the current proposals to amend the discovery provisions of the Federal Rules of Civil Procedure. It concludes:
Our litigation system necessarily costs money. But, the purpose of the system is to achieve justice. No doubt, the costs should be contained as much as possible, but that containment should be achieved without sacrificing basic access to our federal system of courts. The proposed discovery rules incentivize producing parties to hold back information that is necessary to get to the truth, and they further burden requesting parties with proving that they need materials before they can even know what that information is. These proposals may make CEOs and general counsels feel more sanguine about the bottom line of their litigation costs, but they should provoke a great amount of dread in the rest of us. Corporations are less likely to be held accountable for their misdeeds if these changes are made. That cost alone renders the current litigation reform proposals unjustified.
Friday, February 7, 2014
This week, some colleagues and I submitted a joint comment opposing the recently proposed amendments to the Federal Rules of Civil Procedure. Our letter addresses the proposals regarding the scope of discovery as defined by Rule 26(b)(1), the reduced presumptive limits on discovery devices, and the elimination of Rule 84 and the Forms. From the introduction:
In our judgment, two key issues bear close consideration by the Committee as it considers how to proceed: (1) What problem does the Committee seek to solve? (2) On balance, how likely is it that the proposed amendments will improve the status quo? As in 1993 and 2000, the Committee is focused on addressing a perceived problem of excessive discovery costs. In supporting the current proposed amendments, the Committee recognizes that empirical data show no widespread problem, but nevertheless hopes that new across-the-board limits on discovery will lessen discovery costs in the small number of complex, contentious, high stakes cases where costs are high. The Committee is correct about the data: most critically, the Federal Judicial Center’s (“FJC”) 2009 closed-case study shows that in almost all cases discovery costs are modest and proportionate to stakes. As in 1993 and in 2000, evidence of system-wide, cost-multiplying abuse does not exist, and the proposed amendments are not designed to address the small subset of problematic cases that appear to be driving the Rule changes. We anticipate that, as with past Rule changes, untargeted amendments will fail to eliminate complaints about the small segment of high-cost litigation that elicits headlines about litigation gone wild; instead they will create unnecessary barriers to relief in meritorious cases, waste judicial resources, and drive up the cost of civil justice. The amendments are unnecessary, unwarranted, and counterproductive.*** In our view, the amendments are likely to spawn confusion and create incentives for wasteful discovery disputes. Even more troubling, by increasing costs and decreasing information flow, the proposed amendments are likely to undermine meaningful access to the courts and to impede enforcement of federal- and state-recognized substantive rights.
The comment was submitted on behalf of myself, Helen Hershkoff (NYU), Lonny Hoffman (Houston), Alexander Reinert (Cardozo), Elizabeth Schneider (Brooklyn), and David Shapiro (Harvard).
Thursday, February 6, 2014
Tomorrow, the Judicial Conference Committee on Rules of Practice and Procedure is holding its final public hearing on the recent set of proposed amendments to the Federal Rules of Civil Procedure. Here are some links:
- The draft of the proposed amendments
- Comments received (over 500 uploaded so far)
- Transcript of November hearing in Washington, D.C.
- Transcript of January hearing in Phoenix
The public comment period closes on February 15, 2014. You can submit comments here.
Friday, January 31, 2014
Today I submitted my comments on the proposed amendments to the Federal Rules of Civil Procedure. My comments do not yet appear on the government's web site, so in the meantime you can see them on my SSRN page here.
There are over 500 comments posted on Regulations.gov as of this morning, and many of the comments provide an excellent provision-by-provision analysis of the proposals. I chose instead to offer four more general observations in opposition to the proposals, as follows:
First, the most objective and reliable measure of "cost" before the [Advisory] Committee is contained in the 2009 study by the Federal Judicial Center, which shows neither out-of-control costs nor an increase in costs over time. Second, one objective and reliable measure of "delay" is case disposition time, a statistic maintained by the Administrative Office of the Courts. The AO's statistics show that the median disposition time for a civil case (from case filing to final disposition) has maintained stability for twenty-five years, from 7 months in 1986 to a still-brisk 7.8 months in 2012, a difference of about 24 days. Third, contrary to the Committee's apparent belief, lawyers and judges are well aware of the concept of "proportionality" in discovery and apply it frequently. Fourth, the federal courts are widely perceived to favor defendants, and the adoption of these proposals will intensify that perception, because the proposals do, in fact, favor defendants.
We reported on January 1 that approximately 86% of the commenters at that time opposed the amendments. As of January 21, approximately 80% opposed.
We also reported earlier that Professor Brooke Coleman testified in opposition to the proposal to abrogate Rule 84 on January 9 before the Advisory Committee in Phoenix. A transcript of the hearing for that day is now posted here.
The deadline for submitting comments is February 15, 2014.
Monday, January 6, 2014
Brooke Coleman has posted an essay on SSRN, "Abrogation Magic: The Rules Enabling Act, Civil Rule 84, and the Forms." Professor Coleman is testifying this week in Phoenix at the Civil Rules hearing, and the essay reflects the comments she intends to make.
The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof — after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act of 1934. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change to the Rules to which they correspond. Yet, the proposal to abrogate Rule 84 and the Forms has received little attention, with commenters instead focused on proposed discovery amendments. This Essay argues that inattention to the proposed abrogation of Rule 84 and the Forms is a mistake, and that the Forms should not just disappear.
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."