Friday, January 31, 2014

Hull on Federal Rule of Evidence 606(b)

Andrew Hull, law clerk to the Chief Administrative Law Judge of the Drug Enforcement Administration, has posted on SSRN his article, Unearthing Mansfield's Rule: Analyzing the Appropriateness of Federal Rule of Evidence 606(b) in Light of the Common Law Tradition.

Abstract:

Despite blatant jury misconduct that can result in an improper guilty-verdict, the Federal Rules of Evidence, with few exceptions, prohibit testimony from a juror that such misconduct took place. Rule 606(b) specifically forbids such evidence, and the rule is seemingly based in a historic common law tradition.

Despite its lengthy tradition, history actually demonstrates that the rule embodied by Rule 606(b) is an anomaly that fails to comport with prior precedent and the holistic principles surrounding trial by jury. Furthermore, the policy of finality that supporters now use as the rationale for maintaining this rule at the cost of allowing blatant jury misconduct fails to find support in the common law tradition. As will be discussed further, Rule 606(b) should be amended to allow juror testimony of juror misconduct when such misconduct is not a part of the jury’s subjective deliberative process of reaching a verdict.

Part I of this paper describes the history of Rule 606(b) and its underlying policies. Part II discusses the origin of this rule — a case decided by the renowned Lord Mansfield — and questions its legitimacy as a bedrock principle in the common law tradition. Part III analyzes the policy of finality at the expense of overlooking certain juror misconduct in light of historical writings surrounding trial by jury. Finally, Part IV provides a suitable amendment to Rule 606(b) that embraces both a holistic understanding of a just trial by jury while also respecting the inviolate nature of the process of jury deliberation.

 

January 31, 2014 in Federal Courts, Recent Scholarship | Permalink | Comments (0)

More Public Comments (Including Mine) on the Proposed FRCP Amendments

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. 

January 31, 2014 in Federal Rules of Civil Procedure | Permalink | Comments (1)

Tuesday, January 28, 2014

A Cure For The Submission Season Blues?

Now is the time of year when faculty turn their minds to the spring (winter?) law review submissions season. Many may already be struggling with a crucial first question: When should I send out my article? After that decision is made, new questions loom: Did I send it out too late? Did I send it out too early? Is this journal already full? Has that journal started considering submissions yet? And even when the submissions process ends successfully, it may be a year—if not longer—before the article is published.

What if, instead, you could be done with the submission season in a matter of days, and have your article in print within a few months? If that sounds good, the Seton Hall Law Review has just the thing for you. Here’s the announcement:

The Seton Hall Law Review has two remaining spots for Articles in its Third Book of Volume 44, which will be published this June. Authors are encouraged to submit articles through ExpressO or via email (lawreview@shu.edu) as soon as possible.

All topics are welcome, but authors with topics that would benefit from prompt publication are especially encouraged to submit. Because the edits for this issue will begin on February 17, the decision to accept or reject will be made very quickly, and an offer would need to be accepted within 3 days. The first two accepted offers will be chosen for publication.

 

January 28, 2014 | Permalink | Comments (0)

Saturday, January 25, 2014

Kanye West Allowed to Serve Defendants by E-Mail in "Coinye" Lawsuit

In my continuing efforts to make Bitcoin and other cryptocurrencies somehow relevant to this blog, I can report that Kanye West has sued Odaycoins.com, Coinye-Exchange.com, Amazon.com, and others in federal district court in Manhattan (Case Number 1:14-cv-00250, filed January 14, 2014).  The suit is for trademark infringement, unfair competition, and dilution and right of publicity violations, arising from Defendants' "initial public offering of a 'block' of cryptocurrency called, interchangeably, COINYE WEST, COINYE and COYE on their website . . . Although Defendants could have chosen any name for their cryptocurrency, they deliberately chose to trade upon the goodwill associated with Mr. West by adopting names that are admitted plays on his name."  (Complaint, pp. 1-2.)

 

In a civil procedure move that our students will likely find interesting, Judge Analisa Torres entered this order:

 

ORDER GRANTING PLAINTIFFS' EX PARTE APPLICATION FOR PERMISSION TO USE EMAIL AS SERVICE OF PROCESS ON DEFENDANTS AND THIRD PARTIES: that Plaintiffs may serve all legal documents on defendants and third parties by email at email addresses that Plaintiffs ascertain to be valid and operational including, but not limited to the following email addresses: alexfour@orcon.net.nz; coinyewest@ gmail.com; contact@buycoinye.com; coinyecoin@outlook.com; support@coinyecasino.com, rozenbal@emeto.eu; dogecoincom@obscure.me. Such service shall constitute due and sufficient service and notice hereof.

 

The summonses were returned executed two days later.

January 25, 2014 in Current Affairs, Recent Decisions | Permalink | Comments (1)

Plaintiffs Allowed to Appeal Diversity Re-Removals of Cases Filed More Than One Year Earlier

Another update in the ongoing jurisdictional battles involving GlaxoSmithKline.  Howard Bashman of How Appealing reports that the Third Circuit has allowed plaintiffs to appeal the lawfulness of GSK's diversity re-removals of state court Paxil personal injury cases more than one year after the cases were filed in state court. 

January 25, 2014 in Mass Torts, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

Symposium to Explore the Role and Procedural Tools of the Federal District Court Judge

On February 14-15, 2014, the University of Miami Law Review will sponsor a Symposium, Leading From Below, to explore the role of the federal district court judge.  The Symposium will examine the scope and limitations of judicial discretion through four panels highlighting contexts where judges apply and affect public policy in their courtrooms.  The Honorable Jack B. Weinstein is the keynote speaker.  Click here for more information.


January 25, 2014 in Conferences/Symposia | Permalink | Comments (0)

Friday, January 24, 2014

FJC to Study ADR in Eight Federal District Courts

From The Third Branch News:

The different ways federal district courts provide settlement assistance to parties is the focus of a new study by the Federal Judicial Center (FJC).  Eight district courts are participating in the study to be completed by late 2014.  Read more . . .

January 24, 2014 in Federal Courts | Permalink | Comments (0)

Thursday, January 23, 2014

SCOTUS Decision in Daimler AG v. Bauman: Constitutional Limits on General Jurisdiction

Last week the Supreme Court issued its decision in Daimler AG v. Bauman, a case covered earlier here and here and here. In many ways, the case resembles Kiobel v. Royal Dutch Petroleum, last Term's decision on the Alien Tort Statute (ATS). The Daimler plaintiffs had brought claims under the ATS against Daimler—a German company headquartered in Stuttgart—for human rights and other violations committed by Daimler's Argentinian subsidiary during the "dirty war" of the 1970s and 1980s. The Supreme Court's decision in Daimler, however, is all about personal jurisdiction, and it is not limited to the ATS context.

The Ninth Circuit had held that Daimler was subject to general personal jurisdiction in California based on the activities of its American subsidiary, MBUSA. Because it involves general jurisdiction, Daimler is an important follow-up to the Court's 2011 decision in Goodyear Dunlop v. Brown. Writing for a unanimous Court in Goodyear, Justice Ginsburg explained that general jurisdiction over corporations is proper "when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State."

In Daimler, all nine Justices conclude that it would be unconstitutional for California to exercise general jurisdiction over Daimler. Justice Ginsburg again writes for the Court, although Justice Sotomayor writes a separate concurrence that disagrees with much of Justice Ginsburg's reasoning. Parts of the decision—and some of the areas of disagreement—are harder than usual to follow because the parties either conceded or forfeited a number of potentially important points during the course of the litigation [see p.15]. That said, the most significant parts of the Daimler decision address three issues:

(1) When can a subsidiary's activities in the forum state be attributed to the parent for purposes of general jurisdiction?

(2) More generally, when is a corporation subject to general jurisdiction under the Goodyear standard?

(3) What role (if any) do the so-called "reasonableness" factors play in the general jurisdiction context?

Continue reading

January 23, 2014 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, January 22, 2014

Supreme Court Tackles Procedural Issues in Patent Declaratory Judgment Action

In Medtronic, Inc. v. Mirowski Family Ventures, LLC, Mirowski licensed its patents relating to implantable heart stimulators to Medtronic, which makes medical devices.  Later, Mirowski notified Medtronic that it believed some of Medtronic's new products infringed Mirowski's patents.

Medtronic brought a declaratory judgment action in federal court in Delaware, claiming that its products did not infringe Mirowski's patents and that the patents were invalid.  The district court held that Mirowski, as patentee, bore the burden of proving infringement, even though it was the defendant, and Mirowski lost after a bench trial.

The Federal Circuit reversed, holding that Medtronic, the declaratory judgment plaintiff, bore the burden of proving infringement.

The Supreme Court, in a unanimous opinion by Justice Breyer, reversed.  First the Court addressed federal jurisdiction.  An amicus argued that in a DJA, in order to determine whether the action arose under patent law under Section 1338(a), the court must look to the action that the DJ defendant (the patentee, Mirowski) could have brought in the absence of a DJA.  That action, argued the amicus, would be a state-law claim for breach of the license agreement.

The Court agreed that when determining declaratory judgment jurisdiction, courts look to the "character of the threatened action" to see whether it would necessarily present a federal question.  However, the Court held that the threatened action would arise under federal patent law, because if Medtronic stopped paying royalties, Mirowski could terminate the license agreement and sue for patent infringement.

Turning to the burden of proof issue, the Court reversed the Federal Circuit:

It is well established that the burden of proving infringement generally rests upon the patentee. . . . We have long considered "the operation of the Declaratory Judgment Act" to be only "procedural." . . . And we have held that "the burden of proof" is a "'substantive' aspect of a claim." . . .

Taken together these three legal propositions indicate that, in a licensee's declaratory judgment action, the burden of proving infringement should remain with the patentee.

Thanks to Professor Ira Nathenson for bringing this case (which perhaps only a Civil Procedure professor could love) to my attention. 

 

 

January 22, 2014 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

Friday, January 17, 2014

Med Mal Statute of Limitations Held Unconstitutional

Professor Ruthann Robson on the Constitutional Law Prof Blog posted on a decision by the Washington State Supreme Court holding that a medical malpractice statute of limitations violated the state constitution. See http://lawprofessors.typepad.com/conlaw/2014/01/equality-and-statutes-of-limitations-in-the-washington-state-supreme-court-.html

January 17, 2014 in State Courts | Permalink | Comments (0)

Wednesday, January 15, 2014

Supreme Court: Appeal Time Starts Running on Merits Order Despite Pendency of Attorneys' Fees Motion

Here's one of those lawyer's procedural nightmares: an order you believe to be interlocutory actually turns out to be a final decision under 28 U.S.C. §1291, so that the 30-day appeal time has run before you've figured it out.

That's what happened in the third Supreme Court opinion on civil procedure issued this week,  Ray Haluch Gravel Co. v. Central Pension Fund.  Union-affiliated benefit funds (Respondent Funds) sued Petitioner Haluch, a landscape supply company, for unpaid contributions that the Funds claimed were required under a collective-bargaining agreement, ERISA, and the LMRA.  The Funds also sought attorneys' and other fees under ERISA and the CBA itself.

After a bench trial, the district court entered judgment on June 17, 2011, ordering that the Funds were entitled to $26,897.41 in unpaid contributions, which was less than had been requested.  The District Court did not rule on the Funds' separate motion for attorney's fees and other costs until July 25, 2011, when it awarded $34,688.15 in attorney's fees, which was about one-quarter of the amount requested.

On August 15, 2011, the Funds appealed from both orders.  In the First Circuit, Haluch argued that the June 17 decision on the merits was a final decision under 28 U.S.C. §1291, so that the appeal from that decision, made more than 30 days later, was untimely.  The Funds argued that there was no final decision until July 25, when the District Court rendered a decision on their request for attorney's fees and costs.  Judge Selya agreed with the Funds, holding the appeal timely on all issues.

The Supreme Court, in a unanimous opinion by Justice Kennedy, reversed:

In Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988), this Court held that a decision on the merits is a “final decision” under § 1291 even if the award or amount of attorney's fees for the litigation remains to be determined. The issue in this case is whether a different result obtains if the unresolved claim for attorney's fees is based on a contract rather than, or in addition to, a statute. The answer here, for purposes of § 1291 and the Federal Rules of Civil Procedure, is that the result is not different. Whether the claim for attorney's fees is based on a statute, a contract, or both, the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal.

 

January 15, 2014 in Recent Decisions | Permalink | Comments (1)

Tuesday, January 14, 2014

Judge Denies Approval of NFL Concussion Class Action

From The Legal Intelligencer:

The federal judge handling the NFL concussion case has denied preliminary approval of the $760 million settlement agreed to by the league and its former players.  Read more . . .

 

January 14, 2014 in Class Actions | Permalink | Comments (0)

Supreme Court Holds Suit by Mississippi not a "Mass Action" Under CAFA

The Supreme Court has issued Mississippi ex rel. Hood v. AU Optronics Corp.

Justice Sotomayor wrote the opinion for a unanimous Court.

From the reporter's syllabus:

Petitioner Mississippi sued respondent liquid crystal display (LCD) manufacturers in state court,alleging violations of state law and seeking, inter alia, restitution for LCD purchases made by itself and its citizens. Respondents sought to remove the case to federal court. The District Court held that the suit qualified as a mass action under §1332(d)(11)(B)(i), but remanded the suit to state court on the ground that it fell within CAFA’s“general public” exception, §1332(d)(11)(B)(ii)(III). The Fifth Circuit reversed, agreeing with the District Court that the suit was a massaction but finding the general public exception inapplicable.
Held: Because Mississippi is the only named plaintiff, this suit does not constitute a mass action under CAFA.

January 14, 2014 in Class Actions, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (1)

Supreme Court Holds No General Jurisdiction Over Daimler

The Supreme Court has issued Daimler AG v. Bauman.

Justice Ginsburg wrote the opinion for 8 justices.  Justice Sotomayor concurred.

The Court held that Daimler, a foreign corporation, is not amenable to general jurisdiction in California for injuries allegedly caused by conduct that took place entirely outside the United States.

 

January 14, 2014 in Recent Decisions | Permalink | Comments (1)

Friday, January 10, 2014

Remittitur Upheld Where Jury Hated Defense Counsel

The Eighth Circuit allowed a remittitur of damages in a personal injury case but otherwise upheld the plaintiff's verdict in Tedder v. American Railcar Industries, Inc., No. 13-1063 (8th Cir. Jan. 9, 2014).

Plaintiff's back was injured when a golf cart struck a table he was sitting on.  Defendant conceded negligence but disputed causation, pointing to plaintiff's earlier back injuries.

The jury awarded plaintiff over $2 million, twice what his lawyer suggested.  The trial court remitted the award but otherwise denied defendant's motion for a new trial:

Sitting through the trial, one thing became very obvious: the jury disliked defense counsel. Lead counsel, who hailed from St. Louis, Missouri [the case was tried in Jonesboro, Arkansas], was extremely abrasive to everyone in the courtroom. During the trial, a number of the jurors turned away when defense counsel addressed the witnesses and some routinely “rolled their eyes” when counsel spoke. While there is no doubt that the jury had sufficient evidence to find ARI liable, it is clear that the verdict was meant not only to compensate Tedder for his injuries, but also to send a message to defense counsel that their behavior was unacceptable.

 

The Eighth Circuit affirmed:

 

[T]here would be an inherent unfairness in subjecting Tedder to a new trial based solely on the abrasive behavior of ARI’s counsel. We have previously held that a civil litigant may not seek a new trial based on the alleged deficiency of his own counsel. Glick v. Henderson, 855 F.2d 536, 541 (8th Cir. 1988) (“[The] remedy for any ineffective assistance of counsel [in a civil case] is a suit against [the party’s] attorney for malpractice, not a new trial . . . .”). That principle applies with equal force here, where the grant of a new trial to the offending party would deprive its blameless adversary of a well-won victory. While these circumstances are perhaps not as prejudicial as those in Hale, where a new trial would have been the fourth between the parties, we should also remember who the plaintiff in this case is. Tedder is not a corporation with perpetual life and an army of in-house litigators; he is an aging, disabled man who has spent the last four years of his life in litigation. To scuttle Tedder’s victory on the merits solely because of his adversary’s deficiencies would severely prejudice him for reasons that he, along with many others, would find hard to fathom. Thus, we conclude that the district court did not err in denying the motion for new trial.

January 10, 2014 in Recent Decisions | Permalink | Comments (0)

Thursday, January 9, 2014

Tort Reformer Urges Supreme Court to "Rein in" "Activist" Judge Posner

In National Review online, Tiger Joyce, president of the American Tort Reform Association, urges the Supreme Court to grant cert in Sears, Roebuck & Co. v. Butler and a similar case.  Adam Steinman reported on the Butler opinion here.

In Butler, Judge Posner reaffirmed class certification in a case alleging mold growth in washing machines, after the Supreme Court vacated the Seventh Circuit's earlier judgment reported at 702 F.3d 359 (7th Cir.2012) and remanded the case for reconsideration in light of Comcast Corp. v. Behrend. 

Sears petitioned for certiorari.

ATRA president Joyce urges the Supreme Court to grant the petition and "rein[] in crazy class-action lawsuits" and send a message to "activist" and "disrespectful" lower courts.

January 9, 2014 in Class Actions | Permalink | Comments (0)

Wednesday, January 8, 2014

Erbsen on Erie's Starting Points

Allan Erbsen (University of Minnesota) has posted Erie's Starting Points: The Potential Role of Default Rules in Structuring Choice of Law Analysis.

This contribution to a symposium marking the seventy-fifth anniversary of Erie Railroad Company v. Tompkins is part of a larger project in which I seek to demystify a decision that has enchanted, entangled, and enervated commentators for decades. In prior work I contended that the “Erie doctrine” is a misleading label encompassing four distinct inquiries that address the creation, interpretation, and prioritization of federal law and the adoption of state law when federal law is inapplicable. This article builds from that premise to argue that courts pursuing Erie’s four inquiries would benefit from default rules that establish initial assumptions and structure judicial analysis. Considering the potential utility of default rules leads to several conclusions that could help clarify and improve decision-making under Erie. First, courts deciding whether a state rule has priority over a conflicting judge-made federal rule in diversity cases should default to federal law despite the intuitive appeal of state law. Second, when courts are considering whether to create federal common law, the proponent of a federal solution should bear the burden of persuasion. Third, the Supreme Court should replace the rule from Klaxon v. Stentor Electric, which requires federal courts to identify applicable nonfederal law by using the forum state’s choice of law standards, with a default rule that favors forum standards while authorizing federal choice of law standards in appropriate circumstances. Reconsidering how federal courts choose applicable nonfederal laws would also provide an opportunity to reconcile Klaxon’s irrebuttable preference for intrastate uniformity with the more flexible default rule in United States v. Kimbell Foods, which requires courts crafting federal common law to incorporate state standards unless there is a good reason to create nationally uniform standards. Finally, courts should develop a default rule — which one might label an “Erie canon” — to determine whether federal statutes and rules should be interpreted broadly or narrowly to embrace or avoid conflict with otherwise applicable state laws.

 

 RJE

January 8, 2014 | Permalink | Comments (0)

Flurry of Legal Wrangling Follows Third Circuit's Holding that GSK is Delaware Citizen for Diversity Purposes

Back in June, we reported that the Third Circuit held that a ten-by-ten foot subleased office made Delaware the principal place of business of a GlaxoSmithKline holding company, and thus upheld diversity jurisdiction over a personal injury action.  GSK removed several other cases following the ruling.  Howard Bashman, who writes the "How Appealing" blog, says that the Third Circuit's ruling "resulted in an intra-circuit split among district judges in diversity cases that GSK has sought to re-remove outside of the one-year limit found in the 2011 version of 28 U.S.C. 1446(b)."    Mr. Bashman's coverage of the follow-up legal battles is reported here and here. 

January 8, 2014 in Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, January 6, 2014

Coleman on the Proposed Abrogation of Rule 84 and the Forms

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.

Abstract:    

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.


January 6, 2014 in Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (1)

Saturday, January 4, 2014

Federal Judges Pull No Punches on AALS Civil Procedure Section Panel

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."

January 4, 2014 in Conferences/Symposia, Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)