How big should a civil jury be?

Today, I pick a civil jury for a trial that will last about six trial days. I spent last evening getting up to snuff on the motions in limine.

We summoned 17 jurors. I will put them all in the box and manipulate the strikes if we have to pitch any of them for cause. Putting them all in the box will increase my jury utilization statistics.

I hope to seat 8 or 9 jurors after the lawyers finish exercising their peremptory challenges. Unlike all of my colleagues in the District of Nebraska, I almost never use a 12-person jury in civil cases.

I wonder what civil trial lawyers think about juries of less than 12. Let me know what you think.

RGK

A simple question

Image credit: Sketchdog per Creative Commons license.

Image credit: Sketchdog per Creative Commons license.

In a couple of hours, the lawyers will make their closing arguments in my criminal case. After that, the jury will deliberate and we’ll wait for the verdict. That has prompted me to think about trying cases to juries and a simple question. Should jurors in criminal or civil cases be allowed to ask questions of witnesses during trial?

RGK

And the band played on

See today’s press release from the Administrative Office of the U.S. Courts entitled “Shutdown, Holdup for the Courts.” The release states that U.S. Attorneys are filing motions for stays of civil litigation throughout the nation. And, the release also observes that those motions are being granted in some cases, and denied in others.

I have had one such a motion. It was filed in a very high-profile case against the government in another district. I am handling the case by designation because the local judges recused themselves. I denied the motion.

And, the band plays on.*

RGK

*The Titanic’s eight musicians continued to play on the deck even as the ship was going down.

Why not institute a “Motion Day” each week for civil cases?

In response to my recent post soliciting advice about whether I should use Twitter in conjunction with this blog, Vince Powers, a really good Nebraska civil trial lawyer, made the following comment and suggestion:

Why not institute a Motion day every week.? Let lawyers practice their craft of persuasion and as sometimes happen, talk about events in the community and in their lives.

Cyber Court is not good for the parties or the lawyers, and I wonder how it is for the judges? While I don’t know for sure but I think trial judges like the interaction with lawyers. Tweeting face to face without smart phones, its all good.

If opposing lawyers actually have to meet now and then, its becomes harder to be rude and obnoxious as opposed to the easy ability to insult in faceless emails and legal papers. As Cyber Court grows, so does the decline in civility. Prosecutors and defense counsel see each fairly often, I bet they they get along much better that the many civil attorneys who just read emails that begin “I will seek sanctions unless….”

Another civil trial lawyer strongly agreed and wrote:

I couldn’t agree more with Vince’s comment above about the benefits that would come about if the court instituted a motion day, or even just scheduled intermittent status conferences so that the practitioners had an opportunity to (a) see each other, and (b) see their Article III judge before the first day of trial. (It also is crazy to me that the Article III judges require the magistrates to handle pretrial conferences; they have no authority to do anything, and an opportunity is lost to work through some critical issues that will now possibly be sprung on the Article III judge for the first time at trial).

In addition to the reasons Vince mentioned above about the value of a motion day, I also think that it would enable the parties to buy into the process more so than is now possible. While there are many sophisticated corporate parties in federal court, there are also many unsophisticated parties who don’t understand the process. It is much easier for them to accept defeat, or a harsh ruling, if they were able to walk into the courtroom, see the judge who is deciding the issue, and see their counsel argue on their behalf. When decisions are made based on papers alone, it is hard for many unsophisticated clients to accept those rulings. And frankly, it is also hard for some of the sophisticated clients to take, when they don’t know if the Article III judge understood the issue, or if a law clerk decided the issue and it received only brief attention from the judge.

I suspect that the inability to actually appear in court, and the inability to see your Article III judge before the first day of trial, is one of the reasons why civil filings have fallen off over the past decade.

No doubt it would take an investment of time from the bench to make this work, but I think it would be a wise investment…

These comments are serious. They deserve a serious response. 

I don’t believe a “Motion Day” is practical in the District of Nebraska. Here is the short list of my reasons why I think that is so:

  1. To begin with, I practiced law in the state courts of central Nebraska for 13 years under a “docket call” regime where periodically all the lawyers would assemble, sitting in the jury box and elsewhere, waiting for the judge to call their case to discuss the status of the matter and pending motions. You could be in court a half day or more waiting patiently to have your case called. More often than not, not much happened that advanced the resolution of the case. While I enjoyed gossiping with my lawyer friends and complaining about the judge (in hushed voices) at the same time, those “docket calls” were a monumental waste of everyone’s time. So, I have long held a jaundiced view of “Motion Days.”
  2. Despite my jaundiced view, shortly after I became a federal district judge, I attempted to decide summary judgment motions from the bench during a series of “Motion Days” where I scheduled several motions for resolution in back-to-back hearings. To my dismay, I found that I almost always had adjourn the matter without resolution and go back into the papers after the lawyers’ oral presentations to determine what facts were truly disputed. The oral presentations often contradicted the briefs or added factual points that were not briefed or supported by the record. That was particularly true when I pushed the lawyers about a specific factual detail. Since the federal practice frequently requires a reasoned written opinion or a detailed oral statement if the decision is announced from the bench, the extra time devoted to “Motion Days” turned out to be unproductive. I wasn’t moving summary judgment motions any faster (or better). On the contrary, I was delaying the resolution of them. That is even more of an issue now. Our internal procedures demand that we strive mightily to resolve summary judgment motions very fast, normally within 60 days of their ripe date. Ironically, this short deadline was adopted at the urging of trial lawyers.
  3. The present system for moving federal civil cases in the District of Nebraska works well. Here, magistrate judges have control over the calendars of Article III judges. The magistrate judges also handle pretrial conferences and motions except for summary judgment motions and motions to dismiss.  They also handle most criminal motions including motions to suppress and they even take guilty pleas, a practice that is quite stunning to many of our colleagues in other districts. This typically leaves the Article III judges available for trial throughout each week. For the 12-month period ending March 31, 2013, we ranked 19th (best) in the nation and 3rd in the Circuit for getting civil cases tried speedily.  In Nebraska, you can expect to get your civil case to trial in about 20 months. Only 22 civil cases out of 726 total civil cases were older than three years. This statistic placed us in the top (fastest) third of all federal district courts.
  4. Comparatively speaking, we have an extremely heavy criminal docket which takes up much of the Nebraska Article III judge’s time. In the District of Nebraska, and to the surprise of our more urban colleagues, we have the 9th heaviest criminal load in the nation when measured by criminal felony filings per judge. (Although I am a senior judge, I take a full load of civil and criminal cases.) We rank 5th in the nation for felony supervised release violations using the same standard. So, much of our time must be devoted to our criminal docket. Take this week as an example. I am trying a criminal case to a jury. The statutory mandatory minimum prison sentence is 20 years if the defendant is convicted. During the last three days, and over the lunch break, I conducted 9 felony hearings where sentences were imposed or supervised release violations were resolved in addition to handling the criminal jury trial. As a matter of fact, I allocate 1.5 hours of time per day over the noon hour on Tuesday through Friday to sentencing and supervised release matters. The point: If I devote a day a week to holding a civil “Motion Day” surely something would have to give on my criminal docket. That is not practical. Congress has decreed that criminal cases take precedence over all other matters.
  5. Because I served as a magistrate judge for over 5 years before becoming a district judge, and because we are blessed in this district to have three magistrate judges who are truly extraordinary, I am a big proponent of using magistrate judges to the fullest extent of the law. That said, in a world without time constraints, I agree that it would be preferable for district judges to handle their own civil pretrial conferences just as it would be preferable for district judges to take their own criminal guilty pleas. But holding pretrial conferences in civil cases (or taking guilty pleas in criminal cases) makes no sense to me in the real world where time is a scarce resource. That is particularly true for civil cases where only a tiny fraction of the cases ever actually go to trial. Moreover, our magistrate judges are extremely good at calling to our attention difficult issues that may arise at trial. Still further, since I do my own motions in limine after the pretrial conferences, I am not surprised very often by difficult evidentiary issues.
  6. I like civil trial lawyers and I wish I could spend more time with them. I also agree that the modern federal approach to case  management significantly decreases the interactions Article III judges have with civil trial lawyers. Sad though it may be, that is one of the inevitable costs of our national drive for efficiency.
  7. As I have discussed elsewhere, it is true that the Nebraska’s civil docket is shrinking. While one can debate the reasons for that decline, it also provides good news for the civil trial lawyers whose cases remain in federal court. That is, we are, perhaps, on the cusp of a real opportunity for change as a result of falling civil filings. We Article III judges may be able to take a more hands on approach to civil cases as the civil docket pressure eases. For example, I have the Beatrice Six cases involving six people convicted of a murder, but later exonerated after serving long stints in prison, who claim that law enforcement officers engaged in a reckless investigation. Due in part to the falling case load, I have handled the case progression and I will be able to conduct my own pretrial conference in preparation for the complex consolidated jury trial of those six cases.

To sum up, we Nebraska Article III judges have a great gig. We are certainly not overworked. But in my opinion we don’t have time to hold “Motion Days” either.

RGK

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!

RGK

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