A Quickie

If you are a plaintiff’s lawyer and you don’t come to federal court because of all the motion practice, the cost of discovery and the long time it takes to get a trial coupled with the lack of a fixed trial date, would you be more likely to come and see me if I offered you a fast and cheap alternative? The United States District Court for the District of Nevada is offering just such a solution. I really hope that civil litigants take advantage of this innovative offering.

Check it out here and here.


PS to Vince and friends:  Take note!

12 responses

  1. This is a wonderful well thought out program. Please keep us posted on its success. I would re commend a study be done with all lawyers, judges and jurors who participate. A post trial evaluation. dean@nasserlaw.com

  2. Below are links to insightful observations by leaders in the legal business. They will lead you to comments made by federal judges. Subject: “The Vanishing (Civil) Trial in America.

    In the federal court all across the country, less than 1.8 percent of all civil actions ever make it to trial anymore. Litigants are fed up with being bumped, forced to sit at the back of the bus by druggies who are, of course, exercising their right to a speedy trial.

    However, there are very serious civil disputes that have national consequences, civil rights to name one. I mentioned elsewhere in Hercukes and the Umpire that nationally our Stupid Index is rising every year. You don’t have to believe me. Just go to the Federal Department of Education as well as comments made by leading scientists and educators.

    Did you know that 6 out of every 10 people in America have a reading level of Grade 6? That means they cannot pick up Time Magazine or US News & World Report, and fluently read every word without stuttering, stammering, and chocking on every 6th word, and also know what each word means.

    That’s disgusting for a nation that thinks it is the “Greatest Country in the World” and it should be. Right now the world is watching us on CNN. A nation whose educational system is failing its people, will fall from grace where only the very very few highly educated – and rich and powerful – rule the other 99% of its society. We are witnessing the beginning right now.

    Our politicians in Washington, 85% of them are filthy rich and who for the most part only think about their own futures and that of the big corporations that fund their elections, and not what is best for the rest of us here in America. We as a country have been slipping into a quagmire of a very unacceptable standard of living, as well as in education, and on other fronts as compared to many other countries, countries whose names would surprise you.

    Why is that for our supposed “The Greatest Country in the World”? The Stupid Index is just one reflection of the insipid undercurrent that plagues America.

    I come back to why civil trials in federal court are disappearing. Lawyers and their clients are scared to have the outcome of their cases decided by a panel of jurors, by a cross-section of our American Society where 6 out of 10 jurors have almost little to zero education (I consider public high school diplomas worthless) to decide on very serious matters.

    So, yes, they would rather run to ADR venues, hire very highly educated retired judges and contemporaries to officiate and arbitrate their issues.

    Mind you, these very same jurors are absolutely perfect to hear drug cases in the federal court system (which by the way 85% and higher of all criminal cases in federal court is based on drugs).

    There is not a lot of education required by jurors to decide these cases. It is all based on common sense and on emotions, very little to zero university class education, just high school, and as I have said, those diplomas are a joke. In closing, I wonder how much time is left before we also lose our God given common sense.

    Now the Vanishing Trial links.



  3. Why not do this routinely for all trials? With some tweaks (vis., 12-man juries with separate time budget for jury selection, using procedures like your own for moving jury selection along; formal chain of custody procedures for all evidence, akin to those used for DNA and other relatively perishable or expert-evaluated types of evidence), there’s no reason for other trials to be allowed to drag.

    Watching the Zimmerman trial in Florida, it struck me that it took entirely too long to get to trial, and then there were way too many interruptions as one or another lawyer objected to this or that, with many (most?) of the objections striking me as…trivial.

    Indeed, USDC’s Short Trial rules struck me as being as much about pushing the calendar as anything.

    Eric Hines

  4. In short, short trials would be good in some circumstances but I don’t see civil litigants embracing them.

    Short trials would be great in motor vehicle liability cases. Generally plaintiff’s attorneys have those files worked up before they file suit anyway and summary judgment isn’t generally granted so the five month time frame would work in a straight forward motor vehicle case.

    Fair employment is a different story. As a plaintiff’s attorney, I generally don’t have much of anything in the way of documents unless the case derives from a workers compensation claim. In contrast the defense attorney probably handled the investigation for the fair employment agency and knows the case well. In contrast to a PI cases, summary judgment is almost always filed in an employment case. Under a speed trial, I’m 90-120 days from S.J. with little or nothing in my file and at the mercy of the judge and defense counsel to get the evidence I need to prosecute my case.

    Expense in and delay of litigation also serves the interests of civil defendants. Litigation is costly for both sides, but it is proportionately more expensive for individuals and the small plaintiff’s firms who represent them that is for the large corporate defendants and the big firms that defend them.

  5. Jon,

    Thanks for your insight. I take it then that the effort to avoid federal court has more to do with bad substantive law. Is that right?

    All the best.


  6. Eric,

    In the sticks, you would almost never see a trial the length of say a Zimmerman case. The typical trial, civil or criminal, lasts 5 or 6 days from jury selection to verdict. In general, I agree with you that there are good reasons for making trials as short as possible. If nothing else, we should do so with jurors in mind. Incidentally, I have never sequestered a jury.

    All the best.


  7. Plaintiff lawyers seldom want to be in federal court in the Eighth Circuit. That’s why there has been a incredible drop in filings, especially in employment cases. It’s the overuse of Summary Judgment and the startling affirmance of them by the Circuit. If a plaintiff does get a verdict the Circuit, in their infinite wisdom, often reverses or reduces the award according to experienced employment lawyers. I have heard plaintiff employment lawyers say it’s malpractice to file in federal courts in the Eighth Circuit. Also, the is something quite screwy about the federal courts when Iqbal is now the 4Th most cited case in Supreme Court history.

  8. Mark,

    Regarding employment cases, do you think other Circuits are as “bad?” What, if anything, do statistical comparisons (if there are any) tell us about employment cases in the various federal circuits?

    All the best.


    PS To others: Judge Bennett is truly an expert when it comes to employment cases. As a litigator of employment matters before coming to the bench, as a scholar and law teacher of employment law, and as a judge, his expertise is unmatched.

  9. From what I recall a SJ grant in the 8th Cir in an employment case has over a 90% chance of being affirmed. In one study a few years back some 8th Cir judges had either never or on just a rare occasion ever voted to overtrun a grant of SJ to an employer. From my reading of Circuit opinions in employment cases – I read a lot of these because I do an annual supplement for my employment law treatise – the Eighth would be in the upper tier of SJ friendly circuits but would definitely have some company. Other circuits, like the 2nd, are much less SJ friendly in general and the same applies in employment discrimination cases. Post Booker and pre Gall I awlays wondered how we trial court judges were so smart when we granted SJ, especialy in employment cases, but so incredibly erroneous in granting departures and varainces. 😄

  10. Getting back to your original post – the Nevada experiment is a great idea in theory but never works in practice. The Minnesota federal court has had a similar program for over a decade and last time I asked not on case has ever opted in. The economics of the defense practice strongly weigh against a civil defense lawyer agreeing to do this and most will never ever mention it to their clients. On the other hand , mandatory expiated trials with limited discovery should be the norm for the vast majority of federal civil cases – only the extremely complex and super high dollar cases should be exempt. And the decision on complexity should be left to the evaluation of experienced trial court judges not the lawyers. I have been told that cases are extremely complex because they are securities, anti-trust or products cases and they were no more complex than a slip and fall at a local grocery store – when I waded through and discarded all the lawyer nonsense. The civil rules committee should stop their silly nonsense of nibbling around the edges of the rules and revamp the system for quick speedy jury trials before they are gone for ever. Heck, the rules committee generated thousands of hours of resources a few years aback about the meaning of the word “shall” – we need true reform or the system as we have known and loved will be a relic of a bygone era, if it isn’t already.

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