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.


•• †‡•…‹„‡†

When it comes to employment cases, judges are killing the Civil Rights Act of 1964

Some may recall the recent effort by an Atlanta law firm to examine statistically the number of times employment cases got tossed on summary judgment in the Northern District of Georgia. Because the study was a serious one and the results stunning, I posted several times about it. See here, here and here.

In fact, I helped the authors do a similar study of my cases. See here and here. As it turned out my summary judgment dismissal rate was higher than the aggregate rate for the Northern District of Georgia. That is, my dismissal rate was four points higher than the rate in the Northern District of Georgia (86% v. 82%).  That caused me to write this: “The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with ‘yours truly’ too.”

So, that’s the background. Yesterday, Vince Powers, my friendly nemesis, advised me about a powerful article that Nancy Gertner has written on this subject. Gertner now teaches law at Harvard, and was for many years one of the most distinguished federal trial judges in the nation. She is also a really great person with a warm and funny sense of humor. Here is Nancy’s article. I urge you to read what she has written. It will make you think hard.


Kopf’s additional response to Ms. Farahany

Amanda A. Farahany has written in response to my earlier post providing her with my data regarding the issue of how employment cases are treated in the federal courts, and particularly the Northern District of Georgia as shown by a study conducted by Ms. Farahany.  In her most recent comment, she stated:

As you can see, your ‘statistics’ are actually lower than the Northern District of Georgia. (71% dismissal/14% ‘unscathed’ v. 82% dismissal/6% unscathed). Many of our judges who had seven cases dismissed 100%. Additionally, some of the judges that had twice your case load dismissed 100%.

What do you think about those differences?

Amanda, I have several responses. Here they are:

  • Initially, you write “as you can see . . . .”  If you intended to provide me with an analysis of my data beyond the words of your comment, I did not receive it.
  • With the foregoing in mind, my “dismissal” percentage should be higher. In the only case where I granted a SJ motion in part and denied it in part–Nugara v. Nebraska Association of Public Employees, et al., 4:09CV3212 (filing no.69 at CM/ECF pp. 24-26)–I pitched all the federal claims with prejudice, and, pursuant to the request of a defendant, declined to exercise jurisdiction over plaintiff’s remaining state law breach of contract claim, dismissing it without prejudice.  As a result, one can hardly argue that the plaintiff prevailed on any claim in that summary judgment proceeding. That being true, my dismissal rate becomes the converse of my unscathed rate. That is, 86% of the time I pitched everything and 14% of the time I left plaintiffs unscathed. If you buy that analysis, my true dismissal rate is four points higher than the rate in the Northern District of Georgia (86% v. 82%).
  • Additionally, you  state: “Many of our judges who had seven cases dismissed 100%. Additionally, some of the judges that had twice your case load dismissed 100%.” Please give me the table citations to your study from where you derive your facts so I can respond to the specifics of that comment. I tried to match up your comments with the tables and had trouble.
  • No matter how you look at it, my dismissal rate and the dismissal rate in the Northern District of George are both roughly equal. What that tells me is that the judges in the Northern District of Georgia and I approach SJ in employment cases about the same.
  • You might find it helpful to know more about how we deal with summary judgment motions in my chambers.  I have two career law clerks. Jan and Jim. Jim is 62 and Jan is 50 (or so). They have worked for me for a long time, they were top flight lawyers before coming to work for me, and they were honor graduates of our local law school. I honestly don’t know their political affiliations, but I suspect they are independents. They skew slightly left of center on politics whenever we chat about such things.
  • Jan and Jim take summary judgment motions according to an internal practice where Jan does the odd number cases and Jim the even number of cases. We try very hard to get SJ motions resolved in 60 days of the ripe date. I almost never discuss the case with Jan or Jim as they are working on the summary judgment motion. When they have completed their work, I receive one thing. That is, a fully completed draft opinion, with hyperlink cites to the record and the cases. I read the opinion and determine whether I agree or disagree with it. Almost always, I file the opinion without change and without discussion and that is because Jan and Jim are very good and very, very thorough. Jan and Jim’s only direction from me is to write these opinions in strict accordance with (1) the precedents in the Eighth Circuit and (2) with the our local rules of practice that place a high premium on a method for sorting out whether there are truly material facts in dispute. See Nebraska Civil Rules (NECivR), 56.1(a)&(b) at pp. 33-34. Having served as law clerk on the Court of Appeals myself (albeit long ago) and now having sat as a judge with the Circuit by designation several times, I like to think I have a better than average understanding of how to read the precedents from the Circuit.
  • So, what’s the point? Despite my high dismissal numbers, we do “it straight up.” I have no reason to suspect that your judges in the Northern District of Georgia do anything different. The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with “yours truly” too.


Civil jury trials, summary judgment, employment cases and the Northern District of Georgia study–preliminary observations

Yesterday, I highlighted a study and asked readers to examine it. The study authored by Amanda Farahany and Tanya McAdams, both of Barrett & Farahany, LLP, entitled “Analysis of Employment Discrimination Claims for Cases in Which an Order was Issued on Defendant’s Motion for Summary Judgment in 2011 and 2012 in the U.S. District Court for the Northern District of Georgia” makes an important contribution to the empirical literature on the subject of resolving employment cases in the federal courts by summary judgment rather than trial. In this post, I will provide a brief summary of the study, and then add several observations.

A Caveat and Then a Brief Summary of the Study

First the caveat and then the brief summary. The following is not intended as an extended analysis of the statistics generated by the study. I have omitted a lot of information in the interest of brevity and for that reason only. Indeed, that is why I requested that readers of this blog examine the study themselves. That said, here is my brief overview:

*In 2011 and 2012, of the 181 employment discrimination cases in which plaintiffs were represented by counsel and summary judgment motions were in play, 147 (81.21% rounded to 82%) cases were dismissed entirely, 170 (94%) cases were dismissed in whole or in part and 11 (6%) cases survived entirely intact.

*In 2011 and 2012, in race discrimination cases where the claimant was represented by counsel, out of 71 cases, 10 cases (14%) survived summary judgment.

*In 2011 and 2012, in race discrimination cases where the claimant was represented by counsel, black claimants survived summary judgment in 4 (7%) of the 56 cases filed by blacks. During that same time period, in race discrimination cases where the claimant was represented by counsel, white claimants survived summary judgment in 3 (30%) of the 10 cases filed by whites. The remaining 5 cases were comprised of other races or ethnic groups or were not identified by race or ethnicity. Regarding gender, and for that same time period and regarding race discrimination cases, black female claimants survived summary judgment in 1 out of 29 cases or 3% of such cases whereas black male claimants survived summary judgment in 3 out of 25 cases or 12% of such cases. White male claimants survived summary judgment in 3 out 5 cases or 60% of such cases, whereas white female claimants survived summary judgment in none (0%) of the 4 cases they brought.

*In 2011 and 2012 and for sex discrimination cases involving hostile work environment, sexual harassment and disparate treatment claims (lumped together by me) where the claimant was represented by counsel, out of 55 cases, 6 (11%) survived summary judgment.

*In 2011 and 2012, in sex discrimination cases where the claimant was represented by counsel, I could not find a break down by the race of the claimant. Regarding gender, and for that same time period regarding sex discrimination cases, female claimants survived summary judgment in 6 out of 48 cases or 12.5% of such cases whereas male claimants survived summary judgment in none (0%) of the 4 cases they brought. In “multi-female” class cases, none (0%) survived summary judgment in the 3 cases they brought.

*In 2011 and 2012, the great majority of judges in the Northern District of Georgia granted dismissals in 75% percent or more of all race and sex discrimination cases.

Kopf’s Preliminary Observations

*In a comment to this blog, there is a veiled suggestion from one of the authors of the study that an observer might read into the statistics a discriminatory animus on the part of the Georgia federal judges based on the race or sex of the claimant. See Amanda A. Farahany, October 21, 2013 at 11:53 am, here. I categorically reject that suggestion, if indeed that is what the author intended to imply. The numbers are just too small to make such a claim. For example, only 10 cases of race discrimination involved whites, and only 3 of those survived summary judgment. To use those tiny numbers to suggest judges favored whites because the white dismissal rate was only 70% whereas the black dismissal rate was 93% is weak support indeed for a claim of racial animus. To illustrate further, if you want to use tiny numbers, black females had a 100% greater chance of prevailing than white female claimants of race discrimination, but the absolute difference is 1 case as no white female claimants survived summary judgment while 1 out of 29 black female claimants survived summary judgment. Moreover, given that the great majority of judges dismissed these cases at rate equal to 75% or more of the time, it is impossible to believe that most of the judges in the Northern District of Georgia act because of a racial or gender animus.

*According to the Atlanta Journal Constitution, “The U.S. District Court headquartered in Atlanta currently has eight active judges, five of whom were appointed by Democratic presidents and three of whom were appointed by Republican presidents. Title VII cases are also heard by the court’s eight senior judges; six of these judges were appointed by Democratic presidents, two by Republicans. The magistrates are appointed by district court judges.” As a result, it is impossible to believe that the results of the study represent the actions of judges with the same ideological bent.

*In a comment to this blog, see Amanda A. Farahany, October 21, 2013 at 11:53 am, here, one of the authors of this study has written: “Having heard that the problem is the law of our circuit, we expanded the study to the Northern District of Alabama, a state with no state laws (like Georgia) and within our circuit. With essentially the same sample size, rather than dismissing 82%, 66% were dismissed in full. Rather than letting 6% past summary judgment unscathed, Alabama let 12%. Statistician Dr. Michael Freeman has already concluded that this a statistically significant difference.”  I have several reactions to this comment and address them to the authors. A. Please publish the complete statistical analysis for the Northern District of Alabama so that it can be reviewed and tested by others. (Please give due attention to the statistician’s definition of “statistical significance” and the statistical method employed to arrive at such significance.) B. In absolute numbers, the difference between 6% (11 cases) in Georgia and 12% (22 cases (rounded)) in Alabama is only 11 cases. As a result, I would not be willing to conclude that something is wrong with the judges in the Northern District of Georgia on the basis of 11 cases spread among 16 active and senior district judges over a 2-year period even if the results are “statistically significant.” C. Finally, is the number of “unscathed” cases in the Northern District of Alabama about right, too high or too low?  What is the statistic that federal trial judges should shoot for and how do you derive that number?

*My experience leads me to believe that most race and sex discrimination claims against most employers are legally baseless. By this, I do not mean to suggest that most employees or job-seekers are dishonest or that most employees or job-seekers may not have legitimate (but not legally cognizable) grievances. However, the federal law (whether you agree with it or not) does not make employers responsible for work place disputes unless the employer can reasonably be expected to have known and approved of conduct prohibited by the federal law. In short, these are hard cases to get to a jury because derivative liability (you pay me because somebody who worked for you hurt me) is manifestly not the standard in federal employment law.

*Despite my significant reservations about this study, it is a serious attempt to get at a serious subject. Civil jury trials in the federal courts are rare indeed and that is particularly true in the employment context. This study shows us how rare they are in one large metropolitan federal court and presumably throughout the country. I sincerely thank Vince Powers and Barrett & Farahany, LLP for giving me access to the study and for their commitment to the rule of law.

*The reader is reminded that these are my preliminary observations. I am willing to learn more. If I have erred, I am also willing to be corrected.


Judge Mark Bennett’s* modest proposal

If you care about employment litigation in the federal courts, or even litigation in general in the federal courts, you must read Judge Mark Bennett’s  Essay: From the “No Spittin’, No Cussin’ and No Summary Judgment”Days of Employment Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed Without Comment” Days: One Judge’s Four-Decade Perspective, 57 N.Y.L. Sch. L. Rev. 685 (2012–2013).

Here is the abstract:

Nearly seventy-five years after its birth, the time has come to bury summary
judgment. The funeral should be swift, dignified, and joyous. The autopsy
would reveal that the cause of death was abuse and overuse by my federal
judge colleagues. Summary judgment abuse and overuse occurs in all types of
cases, but is especially magnified in employment discrimination cases. This
problem is exacerbated by the daily ritual of appellate courts affirming
summary judgment grants to employers, often without comment, at a rate
that far exceeds any other substantive area of federal law. These beliefs are
based on my four-decade career in employment discrimination as a trial and
appellate lawyer (for both employees and employers), adjunct law professor,
author, speaker, federal magistrate judge, and district court judge.
Unfortunately, my colleagues have become increasingly unfriendly to plaintiffs’
employment discrimination claims. I believe there are six primary reasons for
this “unfriendliness” or what many scholars have observed as “hostility”: 1)
too many frivolous employment discrimination lawsuits; 2) an overworked
federal judiciary; 3) increased sophistication of employers; 4) increasingly
subtle discrimination; 5) implicit bias in judicial decisions; and 6) a shift
among judges from trial judging to case managing. If I were anointed Grand
Poobah3 of federal civil procedure for a day, my first act would be to eliminate
summary judgment—at least for a five- to ten-year experimental period.
The time has come to recognize that summary judgment has become too
expensive, too time-consuming for the parties and the judiciary, and too likely
to unfairly deprive parties—usually plaintiffs—of their constitutional and
statutory rights to trial by jury. I am willing to throw out the baby with the
bathwater because the culture of unjustly granting summary judgment is far
too ingrained in the federal judiciary to reverse course. There is simply no
empirical evidence that summary judgment is efficient or fair. Failing
elimination of summary judgment, dramatic modifications to Rule 56 of the
Federal Rules of Civil Procedure should be made to help eliminate its disparate
and unfair impact.

There are three specific things I need to say about Judge Bennett’s piece.  Here they are:

First, it is truly an essay.  I happen to know that Judge Bennett wrote the article in his own voice and without the help of a law clerk.  As I told him privately, his offering is a beautiful bit of writing and he should write essays more often.  So, if you like fine writing, legal or otherwise, read this article.

Second, Judge Bennett knows that Rule 56 is not going to be abolished, but his case for getting rid of the Rule is in reality a deftly reasoned argument for more judicious use of it by judges and practitioners.  He makes a strong case.

Third, for civil cases, Judge Bennett believes there are two types of judges.  We might call type 1 the “trial” judge who venerates the jury trial.  And then, we might call type 2 the “administrative” judge who manages cases. Judge Bennett’s taxonomy is probably correct.  Unlike Judge Bennett, and for civil cases, I am not at all certain that we should venerate the jury trial and lament its passing.  Some things simply outlive their utility.  Perhaps that is what the outside world is telling trial judges and trial practitioners when it comes to civil jury trials in the federal courts.

In summary, if you care about civil trial practice in the federal courts, read the judge’s thoughtful essay.   It is both provocative and practical.  If nothing else, the next time you file, defend or decide a summary judgment motion in federal court, you will be much better prepared.


*Mark W. Bennett is a U.S. District Judge in the Northern District of Iowa.  One might think that this Iowa district is a sleepy little one. In fact, the Northern District of Iowa has led the ninety-four districts in trials per judge per year more often than any other district over the past decade.

%d bloggers like this: