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.
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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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!