A question for the civil rules committee: Is the “no reasonable jury” standard unreasonable?

There is no secret that the civil jury trial is dead or almost so in the federal courts. I personally don’t lament that passing, but nobody gave me the right to shit can the Seventh Amendment. (Besides, I like watching Vince work a jury.) As I have discussed in this blog (e.g., here),  civil jury trials fall by the wayside because of procedural devices like summary judgment and motions for judgment as a matter of law. Those procedural devices allow a judge to preclude a jury’s consideration of the evidence or take a case away from the jury because “no reasonable jury” could find for the non-moving party (typically the plaintiff) on the evidence presented.

For illustrative purposes, let’s try a thought experiment.  For the actual case, see SCOTT v. HARRIS.

In Georgia, a cop is chasing a speeder. There is a video of the chase. The speeder gets going around 70 mph, with the cops in hot pursuit down a busy road. Despite the obvious danger that the chase poses to the speeder and the motoring public, the cops fail to break off the chase. Other motorists are pulling off to the side of the road for their safety. Turning into a parking lot, the speeder hits one of the cop cars doing but a little damage and speeds off. A cop, probably driving one of those big old black Crown Vics, decides to end the chase and rams the speeder, pushing the offender’s car into a steep embankment and causing a horrible wreck. The speeder is rendered a quadriplegic.

The federal district judge and the 11th Circuit look at the video. Each court agrees that a “reasonable jury” could find that the cop used excessive force in effecting the seizure. So, a jury trial is scheduled. But before trial, and on the grounds of qualified immunity, up to the high and mighty the little Georgia case goes.  Eight justices disagree with the decision of the trial court and the court of appeals regarding what a reasonable jury might find after viewing the video. (Assume all the legal BS about qualified immunity is not really the fighting point, rather the underlying factual inferences are the bone of contention.) One Justice thinks the lower courts view of the video was just right.

Now, under the Seventh Amendment, will you please make sense of this case? When a district judge, several 11th Circuit judges and one Supreme Court Justice conclude that a “reasonable jury” could find for the plaintiff based upon a video, how can the Seventh Amendment have vitality when no jury will ever get that opportunity because eight Justices viewing the same thing come to a different factual conclusion. As Justice Stevens said, “If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this Court’s characterization of events.”  Duh!

What is a “reasonable jury?” I urge you to read Professor SUJA A. THOMAS’s recent article entitled SUMMARY JUDGMENT AND THE REASONABLE JURY STANDARD[,] A Proxy for a Judge’s Own View of the Sufficiency of the Evidence? (Full article by clicking here: SSRN-id2431071).

Among other things, she makes a fantastically good and practical suggestion:

As described here, judges may fall prey to their own opinions of evidence upon motions for summary judgment, directed verdict, and judgment as a matter of law. Moreover, judges may not be able to determine what a reasonable jury could find. As a result, the reasonable jury standard underlying these motions is in need of study. Given that the Supreme Court established this standard in conjunction with the Seventh Amendment right to a civil jury trial-in other words, not to dismiss a case that a reasonable jury could find in favor of-it appears that this important standard by which judges dismiss cases is ripe for reexamination. The rules committee, if so inclined, would be an appropriate body to engage in this study with assistance from the Federal Judicial Center, and such study would be welcome.

(Emphasis in italics and by Kopf.)

I heartily endorse her suggestion. The time is ripe.


•• †‡•…‹„‡†

19 responses

  1. Having considered this issue as well, I submit that the Supremes decision not only undermines the 7th Amendment, but also the many judges who preceded them and concluded that it would be reasonable to find for the plaintiff. By definition, their views are unreasonable, leaving the federal judiciary with a whole bunch of unreasonable judges. Can the federal judiciary really be that bad?

  2. I could not agree with you more. What is “reasonable” became the 8 justices view rather than what the citizenry could have found unacceptable. They told the jury system, “What you might well find is not allowable because we said so”. Their view, in my opinion, was short-sighted. It involved weighing evidence against only their own values and world view. What’s next? When do they get to kill you unnecessarily with impunity as opposed to restraining you? Since when is deliberately unneccessarily causing death or quadriplegia an acceptable consequence of speeding or a speed chase? Shouldn’t the citizens have gotten to determine when the power they gave to the police has been abused? The constitution has been harmed.

  3. It is not that bad …. IT IS INFINITELY WORSE!!! As I have pointed out ad nauseum on this blog already, the purpose of a civil jury and intent of the 7Am is to counter the known (yes, even then!) bias of federal judges, who for the most part, wipe their (famed biblical transports) with the Bill of Rights every morning in the bathroom. (I am on vacation, or I would bloody this blog with ten pages’ worth of incisive remarks by the Framers saying essentially that.)

    I would NEVER trust my life to a judge, because the “Standing Bear honest” ones could hold a national convention in a VW microbus.

    There was no “reasonable civil jury” standard in 1791, and any subsequent effort to restrict the jury trial is unconstitutional on its face. Even Rehnquist said so in his Parklane Hosiery dissent. The jury trial was created back in the day when judges were lions under the throne, who could be removed from the bench by the King at his pleasure. In a conflict between a subject and the Crown, do you even begin to think the subject could get a fair hearing from a judge?

    Due process is inconvenient to those in power, including the black-robed dictators who infest our nation’s benches (and there are a lot of them!) Rather than hire the judges we actually need to discharge the Marbury obligation, judges are trained to get rid of cases because they like being part of an exclusive club. Judges are, as Jefferson warned, expanding their power by increment.

    The only way to make sense of this case is that your “honorable” colleagues are the pond scum I have been telling you they are, Judge Kopf. There is no way to excuse yet another act of constitutional sodomy from the bench.

  4. It seems to this poor, dumb layman Texan that the matter is being over-analyzed by members of the legal profession (us engineers would say the matter is being over-engineered).

    First, a side issue concerning the framing of the problem. It seems to me that it wasn’t a speeder who was being chased by the cops, but a man who was evading arrest–his speeding was simply pursuant to that act (it may also be the case that the man’s initial speeding was the motive for the police to try to stop him in the first place, but that’s also well removed from the matter at hand). The man was injured solely as a result of a sequence of actions initiated by him, a sequence containing actions driven by his effecting his evasion and the duty of the chasing police to stop him. This doesn’t alter the nature of the question at hand, though, since there are a number of ways in which the cop could have reduced the danger to bystanders–and to the evader, but that one, having placed himself outside the law (and its protections) is owed only secondary consideration for his safety. But he is owed that much, hence the question. That’s my own over-engineering.

    But the real matter, it seems to me, is contained in the 7th Amendment: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved….

    There’s nothing in there that says, “Except when a judge doesn’t think a jury should waste its time on the matter;” there’s nothing in there that says, “Except when a judge finds a jury trial inconvenient;” there’s not even anything in there that require all litigants to agree on having a jury trial. A litigant wants one, he gets it. The jury is “reasonable” is such cases pretty much tautologically.

    Full stop.

    Certainly there are a lot of rulings, including from the Supremes, that say otherwise. This matter wouldn’t be the first time the courts, including the Supremes, have gotten it wrong.

    There’s no such thing as settled law, but the longer “settlement” is preserved for its own sake, the harder it gets to restore justice.

    Eric Hines

  5. Judge:
    This is fascinating topic, even for someone such as yours truly who does not have any connection to the federal courts. I am very greatly concerned that–as per Professor Miller’s opinion–the Seventh Amendment to the U.S. Constitution is being gutted, intentionally or otherwise. The much vaunted right to jury trial in civil cases is much too important to be treated in this way. Therefore, I suggest the following constitutional amendment: “No Article III judge or federal magistrate shall act as a gatekeeper as to any civil litigation brought before him or her.”
    Whaddya’ think?

  6. Robert,

    It depends! (Like my penetrating analysis?) It might be simpler and more likely to achieve the result you seek to follow Professor Thomas’ idea. That is, study the issue with really good academics and judges and then rework the civil rules through the judicial rule-making process to tip the scales the other way. But, the civil-rule route has problems, not the least of which is that the Chief Justice and the Supreme Court ultimately control the rule-making process.

    All the best.


  7. To a plaintiff’s employment lawyer like me, this post is red meat.

    In arguing a motion for summary judgment (or, less often, a motion for judgment as a matter of law after a jury verdict for the plaintiff) I never refer to what a reasonable jury might do. Although I know that that is the standard, I always refer to what a reasonable juror might believe. I do that, because I believe that a) if one reasonable person could think in a certain way, then the other 5, 7 or 11 jurors could find the same, and (more important) b) it’s a lot easier for a judge to say to him- or herself that some inchoate group, a committee, would not come together to approve the plaintiff’s case than to decide that no single individual could. The “reasonable jury” assessment is an easy cop-out for judges to make the matter come out the way they want, which the lawyers in the audience will know as “result-oriented jurisprudence.” A (now-retired) partner of mine, one of the nation’s most accomplished civil rights lawyers, believes that all or virtually all decisions are made in that way. I’d like to think that that’s not the case–that at least some of the time judges try to stand back and to resist the urge to write the facts in accord with their idea of what the end should be. And if I can get the judge to fasten on the example of one juror, it is a lot more likely that he or she will agree–however reluctantly–that, yes, the jury could find for the plaintiff.

    In December, I had the pleasure of sitting across from Judge Sutton, of the 6th Circuit (chair of the Standing Committee on Rules, and a member of the Advisory Committee) at dinner during a conference convened by the institute for the Advancement of the American Legal System on the proposed changes to the Federal Rules of Civil Procedure. While we were chatting about summary judgment (which, for those who aren’t acquainted with employment law, is the bane of our existence), I suggested to the judge that the most frequent error that judges make is that they find facts on summary judgment motions. It is black letter law that they are not to do that. But they do, day after day. And I suggested that the next time I have to argue a motion for summary judgment, I am going to say, “Your Honor, your job is not to find facts here. It is figure out if a juror who’s THIS FAR (thumb and forefinger held very close together together) from being committed could find for the plaintiff.” (Propriety requires that I not report the judge’s reply.)

    Judge, your question about re-thinking the idea of the reasonable juror seems to me to be a thinly-veiled attempt to salve your feelings–or maybe your conscience–about the demise of the 7th Amendment. That has been accomplished by decisions that have elevated motions to dismiss complaints and for summary judgment to positions of importance that the framers never envisioned and that–if they had been consulted–would have horrified them.

    In an earlier article (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=886363), Prof. Thomas argued convincingly that summary judgment as we know it is unconstitutional. That is, the role of such motions has expanded exponentially since the right to jury trial was written into the Constitution in 1791, undermining a fundamental right. That expansion has been driven by a federal judiciary that is largely hostile to plaintiffs, the product of several decades of partisanship in the choosing of judges. The undermining of constitutional provisions–particularly a part of the Bill of Rights–by judicial fiat is ultimately destructive of our entire system.

    More jury trials would not be a bad thing. Indeed, by involving ordinary citizens in the justice system more frequently, and by providing more actual experiences about what reasonable juries do, they would be of enormous value. True, they might make the system less efficient (I’ll argue that with you on another day), but we are talking about a system of justice, and justice is not intended to be efficient–it is intended to be just.

    As for the decision in Scott v. Harris, it was obviously wrong. To see that, we need only ask whether the District Court Judge, the judges of the Court of Appeals and Justice Stevens were reasonable people. If they were (and I suggest that that should be a presumption), then jurors could have agreed with them and found for the plaintiff. The idea that eight members of the court could not see that–that they were so distracted by what we take to be “legal reasoning”–that they were blinded to that simple, obvious proposition is frightening.

  8. Those who are deciding what “a reasonable jury would do-” are men and women who would rarely sit on a jury. Because of their elite status, their beliefs and/or biases they would be stricken in voir dire.

    James Madison said-“In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” —
    He didn’t say. “”Motions decided by judges are essential.. ..”

    Cases that are “better” get resolved- its the cases that involve disputed facts, witnesses with flaws, parties who have problems, –, those are the cases that juries used to hear and decide. And juries almost always get it right.

    Who benefits from the slow death of the 7th Amendment? Who is harmed by its passing?

  9. Jon,

    I am curious about why you think my agreement with Professor Thomas that the FJC and the rules committee should look at this amounts “to . . . a thinly-veiled attempt to salve your feelings–or maybe your conscience–about the demise of the 7th Amendment.” While I personally like the fact that I don’t have to try weak or even silly civil cases, and the present system works well to insure that I don’t have to do so, I have a genuine interest in applying neutral and well-founded principles when applying the Seventh Amendment or any other body of law. So, why do you doubt my motivation?

    Truly, I am curious. I am not upset or angry. Just really curious.

    All the best.


  10. Cui bono? Judges. Who is harmed? Plaintiffs with valid claims that elite judges don’t like. We all know this, and more importantly, that judges know this.

  11. Your partner is spot-on. The federal judge is the gravest threat to the Bill of Rights our system has ever engendered.

  12. You see what we do, and I suspect that it discomfits you. You can’t say it, and we all know it as well as you do.

  13. I argued Professor Thomas’s position before the Tent Circus. Do you think that it had even a snowball’s chance in Lincoln in July? As a class, federal judges would rather gnaw their arms off than yield a scintilla of power. No way will they ever do it voluntarily. Bashir al-Assad, Ghaddafi, and Saddam, in robes.

    We saw a practical application of this in the Anastasoff en banc opinion, where the sainted Judge Arnold was forced to swallow his integrity whole. Go ahead. Tell me that his first ruling was wrong, or that they had a basis for withdrawing it.

    We all know better.

  14. The Framers intended that the people be final arbiters of what the Constitution meant. Judges usurped this authority, becoming tyrants in the process.

    Sic semper tyrannis?

  15. Ken,

    I keep looking for empirical data that strongly suggests that federal trial judges as a group grant or deny SJ motions and the like in accordance with the views one would expect from the President who appointed them. (The President is used as a proxy for the beliefs of the judges.) So far as I know, there is no such empirical data. If it isn’t partisan at the district court level, then you must confess that district judges generally do what they are told by their judicial superiors. They are the courts of appeal and the Supreme Court. If so, your bitch (on this Seventh Amendment issue) is not with district judges.

    All the best.


  16. Answer this question, Judge Kopf: How many Article III judges do you honestly believe are so unfathomably and blindingly stupid that they sincerely do not know that a judge cannot sit in judgment of his own cause? Tumey v. Ohio, Calder v. Bull, Dr. Bonham’s Case, et al., ad nauseum. (My surmise is that you can count them on one hand and still bowl with the free fingers.)

    The only way you can get something like this wrong is to be a justice of the peace from the backwoods of Mississippi (there was an actual case where a judge literally pled ignorance of the law, styled Chinn), or to act in a willfully corrupt manner. I don’t know about you, Judge, but to most of us, a degree from Harvard or Stanford Law should be a warranty that the holder can walk and chew gum at the same time. If a 2-L from Creighton can get this right, don’t you think an Article III judge with Ivy League elbow clerks can?

    My bitch is with district court judges like Judge Gertner and even the lowly magistrates, because you have the least discretion of anyone in the system. If a DC judge did his or her job, cases aren’t made to disappear where the issue in question has intrinsic merit. I brought not one but TWO cases to the courts of the Tent Circus that tried to relitigate Anastasoff, but they got shit-canned at the trial court level because ALL pro se civil rights cases do. Judge Robert Blackburn of the District of Colorado literally doesn’t even review the work of his magistrates in pro se cases, as I have thoroughly documented in earlier posts. One case was filed by a Georgetown Law grad with 40 years at bar (Cogswell), but all pro se cases are shit-canned.

    It all begins with you in the TTT. If you do your job in a conscientious and professional manner, you make it markedly more difficult for the clowns upstairs to free-lance. And often, the DC judge knows what is right, but goes all Richard Arnold on us. (His failure in the en banc withdrawal of Anastasoff is objectively unforgivable.) Standing Bear Integrity is what we have a right to expect, but we never seem to get.

    The only reason you don’t see the empirical data is that you haven’t defined the sample discretely enough. There are certain classes of dispute where I can predict the outcome to a veritable certainty if I know (1) who the parties are and (2) who nominated the judge. And if a party is proceeding pro se and the other party is a government actor, I can also tell you to a veritable certainty that the complaint will not survive summary judgment, no matter how objectively meritorious the claim.

    In the final analysis, our federal judiciary is scarcely distinguishable from those of Joseph Stalin or Saddam Hussein. Even Stalin’s law courts could get simple assault or drug cases right. But in both our courts and theirs, some litigants are more equal than others, and if you are on the wrong side of that equation, equal justice under law is no more reachable than the frieze on the SCOTUS building.

    This is why I maintain that our corrupt federal judiciary can properly be equated to the Penn State football program: there are your Jerry Sanduskys who routinely sodomize defenseless litigants’ rights, the Mike McQuearys who stand there and watch in silence, and the Joe Paternos who (e.g., the cover-ups of Nottingham and Kent) actively cover up cases of obvious wrongdoing to preserve the reputation of the program. As Bonhoeffer accurately observes, to not act is to act. And no, I haven’t posted even a tithe of my evidence on this blog.

    As Jon Stewart quipped in America: The Book: “Judges (of the U.S. District Court) can barely read, instead of gavels banging their thick skulls against their desks to bring the court to order. It is not unusual for a district court judge to throw his sandwich at a lawyer he dislikes.” The District of Colorado rather resembles that remark.

  17. RGK–sorry, I did not get a chance to check back earlier, so I did not see your question. And I probably mis-read your feeling about the paucity of jury trials to express agreement with what I take to the the very-un-neutral principles applied,rather than relief at not having to go through the rigmarole of trial. I apologize for that error. (And, too, I may be guilty of trying to hard to turn a phrase.)

    One part of my dinner conversation with Judge Sutton that I think I may relate is his proposal, to me and Kathy Dickson, a fabulous plaintiffs’ employment lawyer from Oakland, that our cases should be put on a one-year schedule with limited discovery and summary judgment in 9-10 months. He suggested to us that that would lead to fewer summary judgments, because when judges saw a mountain of papers (or the electronic equivalent of a mountain) with a trial scheduled only a couple of months in the future, many of them would decide it was easier to try the case than to wade through the summary judgment materials.

    And that raises a question in my mind: Why do judges seem to prefer to parse what are often hundreds (if not thousands) of pages of back-and-forth rather than just sending the damn thing to a trial? You would know better than I, but I should think that a trial is a lot less work than many summary judgment motions. And more fun, because it involves real, live people and the uncertainties that result from interaction among human beings.

    As for your suggestion that the FJC and rules committee(s) look at summary judgment, there are inherent problems in summary judgment, some of which are structural and would not, I think, be susceptible to rules changes. For instance, affidavits and deposition testimony are taken on their face, which in employment cases robs us of the opportunity to show that the employer is liable because it is lying about why it fired or demoted the plaintiff. That really ties our hands, not least because employers have so much more information than plaintiffs, even after discovery. In Furnco Const. Co. v. Waters, 438 U.S. 567, Justice Rehnquist (as he then was)–not typically known as a friend of the workingman–wrote: “We know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who [sic] we generally assume acts only with some reason, based his decision on an impermissible consideration such as race.” But when each witness’s testimony is presumed to be credible on its face, rather than being subject to a jury that sees and hears the witness, the moving party gets a huge–and unfair–advantage. i don’t see that being remedied by rule.

    And, as I mentioned in my earlier post, the greatest vice that we see in summary judgment is that judges make factual findings, which should be verboten. Indeed, this is so common that I have to remind my fellow plaintiffs’ lawyers, repeatedly, that it is error to do so. (It may be error, but try to find an appellate court, state of federal, that reverses a trial court for making factual findings. There are a few cases, I admit, but most of the time the error goes unremarked.) The rules committee could remind judges not to make fact findings, but the real cure would be reversals on that simple and obvious ground.

    Finally, on the subject of neutral principles, I point to an article in today’s New York Times, by the estimable Adam Liptak, reporting a study that shows that both “conservative” and “liberal” justices on the Supreme Court stand up for freedom of speech that they seem to agree with considerably more often than for speech that appears to represent an opposing point of view. http://www.nytimes.com/2014/05/06/us/politics/in-justices-votes-free-speech-often-means-speech-i-agree-with.html?ref=us

    So, while neutral principles are a worthy goal and we might believe that they should be the norm (I do), I question whether in practice they govern more than a small fraction of important cases. (In saying that, I realize that the litigant, his or her case is not only important, it is the only case.)

  18. Jon,

    Thanks very much for your thoughtful reply.

    As an aside, when I began as a magistrate judge, I was given all the summary judgment motions to rule on in Omaha because we had only 2 active district judges and they had caseloads of 600 per judge. We pitched (on my recommendation) summary judgment motions right and left until the Circuit began reversing us per the Supreme Court’s famous summary judgment trilogy in 1986. That brought every thing to a halt. Believe it or not, district judges generally do what they are told.

    My thought is that the Supreme Court will never back off the 1986 cases, but the FJC and the civil rules committee might be able to put some wiggle in those cases through rules and writings that give district judges (and circuit judges) more latitude. It would not take much (witness what judges have been doing with recently with the sentencing Guidelines) to put more flex into the system at the district court level.

    Again, thanks for your very thoughtful reply. I appreciate it.

    All the best.


  19. Like their Soviet and Iraqi counterparts, when it comes to routine cases, federal judges are generally pretty good … but if a matter impacts the power and perquisites of the judiciary, the “rule of law” is routinely flushed down the toilet.

    The trilogy is an excellent example of judges placing their porcine posteriors on the scales of justice for their personal benefit. As a class, judges want to do the fun stuff, as opposed to what the job requires. SCOTUS has elected itself as our Platonic Guardians, and the United States Circuit Courts of Appeal are no longer deserving of that appellation, having devolved into no more than playpens for petulant lawyers with galaxy-class egos, who have become arrogant enough to publicly declare that they are just too important to do their jobs:

    [A]s the docket is “dumbed-down” by an overwhelming number of routine or trivial appeals, judges become accustomed to seeking routine methods of case disposition. … The situation is like that of a competitive tennis player forced to spend the bulk of his time rallying with novices. Just as the player’s competitive edge will erode from lack of peer contact, so are judges’ legal talents jeopardized by a steady diet of minor appeals. [Edith Jones, CA-5]

    A larger appellate judiciary would include “an unacceptable number of mediocre and even a few unqualified people,” and the quality of an enlarged federal judiciary would be “indistinguishable from the most pedestrian of state judiciaries.” [Jon Newman, CA-2]

    The desirability of being a federal judge is inversely proportionate to the number of routine cases brought to federal court. … The professional quality of those who seek a federal judgeship is inevitably affected by the prestige, the challenges and the responsibilities of being a federal judge. [the late Alvin Rubin]

    William M. Richman, Much Ado About the Tip of an Iceberg, 62 Wash. & Lee L. Rev. 1723, 1728-29 (2005) (demonstrating that the Courts of Appeal are de facto certiorari courts).

    There should be no discretion whatever, as summary judgment is spectacularly unconstitutional. But most appellate judges would rather sodomize their grandmothers than actually follow the law if it means forcing them to actually work for a living.

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