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.


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