Thinking about federal civil practice while preparing for Vince

Vince is a local plaintiff’s trial lawyer.  He is a very good one.  In fact, he gave one of the best closing arguments to a jury that I have ever heard.  But, Vince is my nemesis.   He has completely drunk the cool aid when it comes to jury trials.  Moreover, when I posted about the death of civil jury trials in the federal courts, Vince chewed my ass in his comment, asking “why would a plaintiff want to be in federal court? The decline in civil trials in federal court has much more do to with the interpretation of the law by the Circuit Courts and Supreme Court and the resulting increase in summary judgments granted by the district courts.” When I posted about how I preferred the “English” method of jury selection, which cuts out lawyers for the most part, Vince reminded me that America had won the damn revolution.

So it was that when Vince’s partner, Kathleen, called to invite me to be a luncheon speaker at the Nebraska Association of Trial Attorneys (NATA) annual gathering, I agreed but with one firm caveat.  “Keep Vince the hell out,” I said.  Kathleen replied “absolutely not.”   She muttered something about having cojones (one translation is “manly courage”) and taking what I had coming from Vince.  He would, of course, pepper me with a bunch of questions that I couldn’t possibly answer.  (Vince is whip smart.)   Despite my low T level, Kathleen’s taunting challenge to be a man (I think Vince put her up to that) was too much and I relented.  I would go to the damn NATA luncheon, speak, and then try to fight Vince off during the question and answer period.

Even though the luncheon is months in the future, I began to prepare.  I had to–I absolutely will not let Vince get the better of me.  But, a funny thing happened during my preparation.

I read something Professor Arthur R. Miller recently wrote.  Now, if you aren’t a complete idiot, you are well aware that Miller knows more about federal civil trial practice than any other living human.  He has devoted his entire life, and his considerable talent, to studying and writing about how the federal courts work, and particularly how the federal courts handle civil cases.

Photo credit:  j3net's photostream per Creative Commons license.

Photo credit: j3net’s photostream per Creative Commons license.

What I read was entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. Law Review 286 (April, 2013)  (free download here).  Professor Miller’s article is very persuasive.

He makes the following points:

  1. When the Federal Rules of Civil Procedure were promulgated in 1938, they reflected a policy of citizen access for civil disputes and sought to promote their resolution on the merits rather than on the basis of the technicalities that characterized earlier procedural systems.The federal courts applied that philosophy of procedure for many years.
  2. However, the last quarter century has seen a dramatic contrary shift in the way the federal courts, especially the U.S. Supreme Court, have interpreted and applied the Federal Rules and other procedural matters. This shift has produced the increasingly early procedural disposition of cases prior to trial. Indeed, civil trials, especially jury trials, are very few and far between today in the federal courts.
  3. Miller examines the significant manifestations of this dramatic change, and traces the shift in judicial attitude back to the three pro-summary judgment decisions by the Supreme Court in 1986 (the Celotex trilogy of cases). Furthermore, he goes on to discuss the judicial gatekeeping that has emerged regarding (a) expert testimony, (b) the constriction of  class action certification, (c) the enforcement of arbitration clauses in an extraordinary array of contracts (many adhesive in character), (d) the Court’s abandonment of notice pleading in favor of plausibility pleading (which, in effect, is a return to fact pleading), (e) the intimations of a potential narrowing of the reach of in personam jurisdiction, and (f) a number of limitations on pretrial discovery that have resulted from Rule amendments during the last twenty-five years.
  4. According to Miller, all of these changes restrict the ability of plaintiffs to reach a determination of their claims’ merits, which has resulted in a narrowing effect on citizen access to a meaningful day in court. Beyond that, these restrictive procedural developments work against the effectiveness of private litigation to enforce various public policies involving such matters as civil rights, antitrust, employment discrimination, and securities regulation.
  5. Concerns about abusive and frivolous litigation, threats of extortionate settlements, and the high cost of today’s large-scale lawsuits motivate these deviations from the original philosophy of the Federal Rules, but these concerns fail to take proper account of other systemic values. Still further, Miller argues that these assertions are speculative and not empirically justified, are overstated, and simply reflect the self-interest of various groups that seek to terminate claims asserted against them as early as possible to avoid both discovery and a trial. Indeed, they simply may reflect a strong pro-business and pro-government orientation of today’s federal judiciary.
  6. Miller cautions that some restoration of the earlier underlying philosophy of the Federal Rules is necessary if we are to preserve the procedural principles that should underlie our civil justice system and maintain the viability of private litigation as an adjunct to government regulation for the enforcement of important societal policies and values.

After I got done reading Professor Miller’s piece, a cold, a very cold, chill ran down my spine.  My God, could it be that Vince was right?  Oh, hell no!


21 responses

  1. Hence the stonewalling on almost any candidate President Obama puts forward for the federal bench. It’s all about helping the defendants and attacking the money earned by the plaintiff’s lawyers so they have less to give to Democrat candidates. So transparent, and so wrong.

  2. Jeanelle,

    Offer to buy him a drink, and then offer him $10,000 less than before, and it will settle.

    In service to you,


  3. I have been practicing in the federal courts for nearly 40 years, and reading this made me think– thgis is so obvious, why didn’t I notice it happening? Perhaps because it has been so gradual and has not been marked with an announcement that the controlling law is changing.

  4. Dear George,

    Your comment is insightful. Frankly, I sensed a change,but was not consciously aware either. Now, I should caution that while I agree with Miller’s historical analysis, I am far less convinced that (1) the change was driven by some right wing agenda or (2) when it is all said and done, that the public is ill-served by the change. I suppose that is what Vince and I may debate.

    All the best.


  5. Vince’s comments about getting back to the “art of persuasion” and moving away from written legal analysis made me cringe. That has been my exact experience in state court: plaintiffs’ lawyers trying to browbeat the judge (who they know and possibly helped get elected) into ignoring the law and deciding the case on emotion. Trying to get something filed in state court? Good luck, because you won’t find any actual instructions regarding their arcane rules. Of course, if you went to grade school with the clerk, you’ll be fine. I’m overstating the facts a little, but not by much.

    Discovery in federal court is seriously broken. But before we jump from the frying pan into the fire, we should also acknowledge that the quality of judicial legal work in federal courts far surpasses that in state courts. That is why defendants’ prefer federal court. And that view shouldn’t be surprising: in the federal system, there are fewer courts, better pay, more prestige, and lifetime appointments. My intent is not to demean the many state court judges who conscientiously work hard to reach the right result under the law. But to the extent anyone believes that state courts provide a “better” forum for resolution of judicial disputes, they would be mistaken. Different? Sure. But better? No.

  6. Dear Big City Lawyer From a Small Town,

    Yes, indeed. We should not look at this debate with starry eyes as many plaintiffs’ lawyers tend to do. The issue for me is what system–the old federal system as Miller describes it, the present state system as you describe it, or the present federal system that Miller and Vince accurately describe and abhor, best serves the public–not the lawyers.

    For my money, the present federal system, on balance, is preferable to the alternatives. Again, this is what Vince and I will debate at the luncheon.

    Thank you for your comment. All the best.


  7. Your Honor:

    I agree that the federal courts seem to place form over substance more than in the past. As a plaintiff’s attorney in NM, I sometimes do whatever I can to avoid federal court. Summary Judgment has become a means of clearing one’s docket. On the other hand, when I am certain I can survive summary judgment, I will file in federal court if I can because I know that even the most conservative judges will not tolerate the Rambo style tactics some defense lawyers employ. In that respect, federal court is a safer place to be.

  8. Back in April, I wrote a guest post for the Torts Prof blog on this very subject, linked here via my name, titled “The Danger of Assuming Judicial Omniscience in Tort Law.”

    Here’s a thought experiment: let’s assume that, beginning in 1985 or so, the Supreme Court was overtaken by a cynical conspiracy of wealthy interests trying to close the courthouse doors to plaintiffs and deny them the right to a jury trial, regardless of the merits of their cases. Imagine how that cynical Supreme Court would have ruled on the cases before it.

    Now, compare that hypothetical to what actually happened. Not much of a difference, is there? When you’re playing craps and you lose big every time, you start to question the dice.

  9. Your Honor, I applaud your insightful blog post.

    First, Professor Miller is on the mark in his observations.

    Second, As to lawyers who have begun to stress persuasion vs legal analysis, anyone who engages in “legal analysis” with a jury is a fool and will be rejected. Jurors look for “right and wrong”. If the interpretation of the law and the version of the facts that are presented to them squares with their sense of right they will search the evidence to support that interpretation and will reject contrary versions of the law and the facts. If not, it goes the other way.

    Sadly, the numerous false premises of tort reform have become part of the value system of almost every juror. Civil Plaintiffs do not start from a neutral position with the Defendants. Frankly, although I still have great faith in Jurors, it takes a fair amount of work at the beginning of a trial to get past the bill of goods they have been sold to get them to open up so we all can start from the same starting line. Persuasive techniques, are largely not to gain an unfair advantage, but are to even the uneven playing field.

    Third, In my 40 years of trial practice, I have never been as concerned about the loss of America as I am today. Tort reforms, ERISA, mandatory arbitrations. Celotex/ Iqbal, Guantanamo, “administrative” searches & seizures, DNA from arrestees, torture, unbridled government surveillance, limitations on Habeas Corpus and more all have as their object the reduction or elimination of the American Trial lawyer from the process of enforcing individual rights and freedoms and the turning over of the power behind our ability to render those protections to Big Business/Big Insurance and Government. When my power to help fades your Honor, so does yours.

  10. Dear Sdroar,

    Thank you for your comments.

    Your point about private lawyers in essence serving as “private attorneys general” and thus providing regulatory oversight over a whole host of important public matters is a very important one. I suppose the question is whether we want to regulate ourselves using that indirect mechanism. On the other hand, if we believe in market principles, why shouldn’t private lawyers serve that function?

    All the best.


  11. Dear Mr. Berlin,

    Very interesting observation. I am particularly glad that your experience with federal trial judges dealing with “Rambo” stuff is positive. If nothing else, the federal courts should be known for stressing civility and professionalism.

    All the best.


  12. Dear Mr. Kennerly,

    Your post on the Torts Prof blog and your comment here are thought provoking. If the premise of your post and comment is correct, do you have a practical solution?


  13. Your Honor, I didn’t mean to limit the effectiveness of trial lawyers to being “private attorneys general”. I’m talking about the wholesale effort of big/business/big insurance and government to take that “power” that we call freedom that used to belong to the individual (and that used to be enforceable through trial lawyers), and to appropriate it to themselves and away from the individual.

    take just one example: ERISA. If there is $100,000 in liability proceeds, an ERISA plan can take it no matter how large the non-medical losses of the individual. Moreover, the Plaintiff’s lawyer cannot be paid since the money no longer belongs to the Plaintiff.

    Defendants know this so they keep pressure on the civil Plaintiff knowing he will have to fold.

    The ERISA carrier knows the law, so they won’t compromise.

    The Plaintiff’s are now, sadly, being advised by their attorney’s to just go on welfare, Medicare, Medicaid, Social Security, and to just let private insurance pay the bills.

    80% of all health and disability insurance is ERISA. Look at what this is doing to the tort system. It is only a matter of time before tort law is gone and socialism is here. The funny thing is that the conservatives are the ones behind this trend.

    This trend is present in one form or another in administrative law, criminal law, constitutional law, and civil law. The are fewer rights to enforce now than when you and I started the practice of law.

  14. sdroar,

    An interesting aspect of the debate about the demise of the tort system that is seldom discussed relates to lawyers who make their livings defending tort claim. While one may fairly attack the plaintiffs’ bar for being self-interested, I wonder whether the defense bar understands the consequences of the death of civil trials in the federal courts.

    Is it too snarky to argue that the defense bar may be the equivalent of the Quislings of yesteryear–collaborators to be tossed aside when they are no longer useful? My question is intentionally provocative, but I haven’t thought through an honest answer. I may post about this sometime.

    Thanks for your comments. All the best.


  15. Civil defense lawyers too are mostly victims. Forty years ago, and even 20 years ago, the defense lawyers ran their cases. They did what they thought was right. Now, I don’t know a single one who feels free to grant an extension or continuance without getting permission. We get a lot of apologies from them. I have seen defense counsel either have to quit because of or get fired by adjustors running the show pursuant to insurance company policies that are beyond even the adjustor’s control. Some adjustor’s have as little as $500 settlement authority.

    By the way your Honor, sdroar is my username only because your host already had it registered to me as a Detroit Lions fan. I apologize for any lack of dignity it might convey in this setting.

  16. Dear Mr. Nasser,

    Please don’t apologize. Suh is a Husker after all (and he isn’t dirty even though once in a while his footwork is called into question).

    Your point about the constraints on defense counsel by insurance companies or the client is a good one. I just wonder if the defense bar sees what’s coming.

    All the best.


  17. Two weeks after your comment, the Court delivered, 5-4, two hard blows to anti-discrimination law and a windfall to drug companies.

    The more I think about possible solutions, the more discouraged I get, but I would like to see two things:

    (1) Cameras in the Supreme Court and regular appearances before Congress by Justices to discuss opinions. Cameras make litigants and lawyers behave themselves in depositions, it could help remind the Justices that they are not in “their” Court, they are in “our” Court. Similarly, regularly explaining and defending themselves — beyond the sophistry so common in their written opinions — could help keep them in check.

    (2) All Supreme Court nominees are required to answer, if they are asked by the Judiciary Committee, how they would have ruled on particular cases. None of this “I don’t want to pre-judge” nonsense. Every lawyer can review a decided case and say how they would have ruled; any nominee who can’t, with sufficient notice, say how they would have ruled on a particular prior case is either incompetent or dishonest.

  18. Max,

    While I suspect that my view of the world and my motivations are different than yours, I entirely agree with you that (1) televising oral arguments at the Supreme Court (say on C-Span) would be a great thing for the Court and everyone else if only because it would make the decisions of the Justices more transparent; and (2) any prospective Justice worth his or her salt can answer questions about past decisions during a Senate confirmation hearing without prejudging cases to come.

    Now, having agreed with you, let me add several things. Televising oral arguments at the Supreme Court will come, and probably in my lifetime (which, given my age, is not very long in the scheme of things). I also think that every other federal court should allow the proceedings to be televised, but I also think that the organ that televises the proceedings should be a public entity or a non-profit. Ultimately, I think that our courts will use video to make a record of proceedings, and when that comes, the video record can be uploaded to CM/EFC on a daily basis just like digital audio is now. That would make every federal judicial proceeding viewable to the public at any time of the night or day over the internet at virtually no cost. That is coming, or so I fervently hope.

    Regarding Senate confirmation hearings, the present mess we are in is a product of a mistaken view of the role of the Senate. I can count on no more than three fingers US Senators who were competent to judge the competence of nominees to be a Supreme Court Justice. US Senators are competent to determine whether the President has nominated a political hack or a criminal, but they are not competent to judge anything else. By and large they are dolts when it comes to the law and the judiciary. But, since we have gone too far down this rocky road to turn back, I agree with you that there is now no good reason why a judicial nominee should refuse to answer questions like, “What would you have done in Citizens United?”

    Besides, I would enjoy watching the heads of the Senators and the pundit class explode when an honest nominee gave an honest answer. For example, to the question, “Would you have voted with the majority in Citizens United,” an honest nominee might say, “Well, of course, my answer is’Yes.’ In the real world, money cannot honestly be divorced from speech, and corporations, like other associations of people such as trade unions, have First Amendment rights too but only to protect the First Amendment rights of their members.” (An honest nominee might take the opposite position as well.)

    All the best.


  19. Pingback: For now, just read, we’ll talk later (hint, could Vince be right?) « Hercules and the umpire.

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