Last month two federal court of appeals judges sucking up to speaking at the Federalist Society Convention advocated no discovery in cases worth less than $500,000. From the Slate article:

Thomas Hardiman, a judge on the 3^rd U.S. Circuit Court of Appeals, made what should have been viewed as a shocking declaration for a federal judge. Hardiman told the crowd at the 2018 Federalist Society Convention: “If I were able to do something unilaterally, I would probably institute a new federal rule that said that all cases worth less than $500,000 will be tried without any discovery.” The audience applauded. A fellow panelist, Judge Amul Thapar of the 6^th Circuit, chimed in, “Can I say amen?” Thapar later repeated his endorsement of the idea.

My Take:

Thank god those guys aren’t orthopedic surgeons. “Your knee hurts? I’ve got just the solution. We’ll chop off your leg.”

I doubt they were serious. In a tactic known well to touring musicians and professional wrestlers, this sounds like ‘cheap heat’ playing to the crowd. Ever heard “It’s great to be here tonight in Memphis, Tennessee” (or wherever you saw the show)?

I don’t know who is in the crowd at a Federalist Society Convention. But if it was lawyers and judges, I doubt their cheers were serious either. The judicial system is not known for embracing change.

I know it was not a bunch of insurance company people. The last thing in the world insurance companies want is to roll the dice in a trial where they haven’t been able to evaluate the risks due to insufficient information.

The first problem I see is who and how is it determined that a case is worth less than $500,000? Are we talking the amount the plaintiff is suing for, or the value of the case factoring in possible outcomes?

There are cases where plaintiffs sue for $2 million, but the case is worth less than $500,000. There are cases worth less than $500,000, where the plaintiff recovers $2 million. There are cases worth $2 million, where the plaintiff recovers $0.

District and Magistrate Judges have their fingers on the pulse of litigation enough to understand this. Court of Appeals judges? Let’s just say they view the landscape from a height far above reality on the ground.

I am all for improving the litigation system. I agree that discovery is not efficient. But the main reason it is not efficient is that in a system designed to prevent trial by ambush, many litigants try to conceal evidence and conduct trial by ambush.

Maybe we should try to improve the system work before we eliminate it?

In many cases, there is way too much mindless discovery conducted. Every witness in every case does not need to be deposed.

Why depose someone who you know what they are going to say? Some would respond that they don’t know what someone will say until they depose them. I disagree. Most witnesses say what you would expect them to say.

Deposing experts, in particular, is often counter-productive for the party taking the deposition. Think you are going to flip an expert in a deposition? Of course not.

Does there need to be a 7 hour time limit for depositions in all cases? Isn’t 3 hours plenty of time in most cases?

Should the mandatory disclosure system be updated and improved?

Should there be two summary motion deadlines in case management orders, one for affirmative defenses not dependent on discovery and a later deadline for other grounds?

These are just a few ideas off the top of my head. The system can definitely be improved. I’m just not sure a blanket ban on discovery in cases deemed to be small potatoes is the best way to do it.

Nicole Hong penned this entertaining Wall Street Journal [paywall] article about sleeping jurors in Saturday’s print edition. The opening:

The right to a jury trial is a pillar of America’s justice system, enshrined in the Constitution from a tradition dating back more than 1,000 years.

The problem these days is making sure jurors stay awake…..

From time immemorial, jurors have been falling asleep because from time immemorial, lawyers have been boring,” says John Gleeson, who was a federal judge in Brooklyn for 22 years. “We’re the dullest people in the world, for Christ’s sake.”

Sidebar: Come on judge. Us lawyers are just playing by you judges’ rules. Us lawyers would love to insert some interesting commentary on the testimony. You won’t let us.

My favorite line in the story:

When lawyers see a slumbering juror, “it is a total blow to the ego,” says Sarah Coyne, a former federal prosecutor and now a partner at Weil Gotshal & Manges LLP.

The article also talks about sleeping judges.

The only solution the article suggests to the issue is letting jurors take notes.

My Take:

I have a different take on lawyers’ reactions to a sleeping juror. A lawyer does not need to do trial work if their ego is fragile enough to take a hit when a juror sleeps.

Trial lawyers need thick skins and a lot of confidence in their abilities. Confident trial lawyers think a sleeping juror (or judge) has the problem–not the lawyer. That’s just how trial lawyers have to be wired.

Plus, potential jurors who seem engaged in voir dire usually get struck by one side or the other. People who look docile tend to not get struck as readily. The attorneys are trying to spot the leaders, get their leaders on the jury and strike the other side’s leaders. They aren’t worried if the non-leaders sleep because they are banking on them going with the vocal leaders.

Many cases are deathly exciting for the lawyers involved and deathly boring for everyone else. And there’s only so much the lawyers can do to make it more interesting.

After opening statements, lawyers just get to ask questions until closing. Exactly how interesting can the lawyer make it when their decision is: what do I ask next? Somewhat more interesting, at best.

I worry about how jurors process information and decide cases. I’ve written a lot about the topic under the Improving the Jury System Topic. I’m more worried about jurors not deciding cases based on the evidence and law that sleeping through some of the testimony.

The whole system for trying cases needs a fresh look at whether it can be improved based on modern technology and decision makers. But I don’t see it happening in my career.

Last week I experienced my first voir dire as a potential juror. This post reports on the experience.

I was summoned to appear in the big courtroom at the Hinds County Courthouse at 8:30 a.m. This was my second jury summons, but the first where I made it onto a panel.

Hinds County Circuit Clerk Zack Wallace initially led the proceeding. He explained how hard it is to get people to show up for jury duty, thanked everyone for being there and told us four times to turn off our cell phones or put them on silent. Having seen how much judges relish seizing ringing cell phones, the emphasis seemed appropriate.

About 150 people (my estimate) showed up out of 500 who were summoned. Only one jury was needed for the week, so it was way more people than needed. I had an inkling that it was for a criminal trial because I couldn’t find a scheduled civil trial on any of the judge’s on-line calendars.

Judge Gowan presided and was all business. Some judges have comedy routines for voir dire. But that seems to occur more in smaller venues. I appreciated the brevity. We were dismissed by 9:30.

Judge Gowan went through the litany of reasons that excuse people from jury duty: age, habitual drunk, common gambler and the like. After Judge Gowan finished, Mr. Wallace drew names for the panels.

Knowing a bit about voir dire, I preferred to either be in panels 1-2 or not invited back for the afternoon. Naturally, I was in panel 4 and had to come back at 1:30. I can’t recall a trial where anyone from panel 4 made it onto the jury, so I figured that I was unlikely to be in play for the lawyers picking the jury.

We reported back at 1:30 p.m. in the jury assembly room. Five panels came back so there were 60-plus people there. No one was talking. A few people read books. Most people played on their phones. I saw one person napping, but most of us were saving our naps for the courtroom.

I recognized a neighbor and an employee at one of the local gyms. My neighbor is handicapped and complained about how poorly handicapped accessible the courthouse is. I’d never thought about it, but he has a point.

Before we were herded to the courtroom, no one explained what was going to happen. I thought this was a mistake.

Bailiffs lined us up and took us into the courtroom at 1:45 p.m. When we entered the courtroom, it was obvious that it was a criminal trial because I didn’t recognize any of the lawyers and there was only 1 person at the prosecutor’s table. Turns out it was a murder case being prosecuted by the Attorney General’s office.

If you’ve ever wondered the percentage of Hinds County residents own guns, it’s close to 100% based on the response to a voir dire question.

A few potential jurors admitted to knowing prospective witnesses in the case. But they said that they could be fair in response to very leading questions.

The defense attorney asked who had been a victim of a violent crime or had a family member who had been a victim of a violent crime, but without defining ‘violent crime.’ I thought that was a mistake.

The defense attorney asked me who I worked for (I put ‘self’ on questionnaire) and what kind of work I do. I did not volunteer responses to any of the other broad questions. The only question I was uncertain on responding to was the one on family members as victims of violent crimes. I have a niece who was almost abducted. The perpetrator was caught and imprisoned. Was that a violent crime? I don’t know.

We breaked between the prosecution and defense voir dire.We returned to the jury assembly room at about 3:45 p.m. Once again, there was little interaction between the prospective jurors, which I found surprising. I guess they don’t start talking until they actually make it onto the jury.

At about 5:00 p.m., the bailiff came back and called out the names of the twelve jurors and three alternates selected and released the rest of us. I did not try to analyze who was left on the jury and why people were struck. I wish I had. But it was late and I was ready to beat it out of there.

I thought the process went about as efficient as it could. I never thought the judge or attorneys were wasting time. One suggestion for improvement is for someone to explain what was happening when we reported back at 1:30 p.m. I knew, but suspect that most people did not.

The longest wait was after voir dire while the judge and attorneys picked the jury in the courtroom. I thought it would have been fine and people would have appreciated it if someone had explained the reason what appeared to jurors to be a delay.

I’ve previously written criticisms about how we pick juries without telling potential jurors anything about the facts or law of the case. Yet we ask them to commit that they can be fair and impartial even though we really haven’t told them anything about the case. There is a lot of room for improvement in this area.

Of course people say they can be fair when we don’t tell them anything about the case. We also let them know that’s the right answer. Most people don’t want the attention of saying they I can’t be fair.

I’ve been in trials where there were mini-openings before voir dire. That along with a brief explanation of the law would be helpful.

Also, this goes against the grain, but I think juries should be instructed on the law before the evidence goes in.

The judicial system is set in its ways on picking juries. It’s not horrible, but it could be improved. The institutional resistance to try to improve the jury system baffles me. We have rules committees for improving pre-trial procedure, but give almost no attention to improving trials.

All in all, my jury duty day was a worthwhile and educational experience. In addition to it being your civic duty, you might learn a thing or two that you can implement in your trial practice when you participate in jury selection from outside the rail.

A few weeks ago the New York Times ran this article about a mistrial in a New York murder trial following a several-months-long trial and 18 days of jury deliberations.

The part of the story that grabbed me were the complaints from other jurors that the sole holdout introduced his own theories into deliberations:

[the holdout] was convinced he had acted on principle, but other jurors believed his views were so strong and so singular that they began imagining three theories of the case: the prosecution’s, the defense’s and [the holdout’s]….

Other jurors said they thought [the holdout] was distrustful of the detectives in the case, sometimes citing recent examples of police misconduct….

Sometimes, while challenging the narrative presented by the prosecution, [the holdout] suggested alternatives that other jurors said seemed far-fetched. “He would come up with theories that the defense didn’t even bring up,” said…, the jury’s forewoman.

This is a real life example of an issue I’ve written about before where jurors introduce their own evidence and unsupported theories into deliberations. I view it as a big problem that the judicial system wants to ignore.

I don’t think that jury instructions adequately explain how juries should go about reaching their verdict. Calling our current method of instructing jurors a joke might be an overstatement. But I’m sure the system of instructing juries could be greatly improved simply by revisiting general court instructions.

Lawyers and judges should always be looking for ways to improve the judicial system. Instead, most would rather maintain the status quo.

It’s too bad. This is an area where it might not be hard to greatly increase the odds that juries render the right verdict for the right reasons.

The Atlantic reported this week on elected Texas Supreme Court Justice Don Willett speaking out against the elected judicial system. Here are some of Justice Willett’s comments:

The ACS study raises difficult and consequential questions, familiar questions that frankly can’t be raised enough. A former Texas Governor, Sull Ross, once said, “The loss of public confidence in the judiciary is the greatest curse that can ever befall a nation.” I don’t disagree. The Texas Constitution, however, mandates a judiciary elected on a partisan ballot. Calling this system “imperfect” is a G-rated description, and I’m intimately acquainted with the myriad drawbacks, and they are plentiful.

On the one hand, Texans insist on their right to elect their judges (though they can’t name any of us). On the other hand, they harbor suspicions about the role of money that ACS chronicles. I’ve long favored smart judicial-selection reform — every member of my court does — and every legislative session, reform measures are filed … and then they fail. Both major parties and lots of activist groups in Texas oppose changing the current partisan elected system. Interestingly, the business lobby and tort-reform groups all favor scrapping our current judicial-selection system.

In other words, those who allegedly benefit from the current system aggressively favor replacing it. But the status quo is deeply entrenched, and legislatively, the wheels always come off……

No doubt contributions play a huge role in determining political victors and victims, in judicial races no less than in other branches. My name ID hovers between slim and none, and voters know far more about their American Idol judges than their Supreme Court judges. The crass bottom line is that you spend 99 percent of your time raising a colossal fortune that you then use to bombard voters in hopes of branding your name onto a tiny crevice in their short-term memory for a few fleeting moments.

I’d be shocked if people didn’t look askance at such a flawed system. I do, too, having had close-up experience spanning several contested statewide races. Nothing would please me, or my wife, more than if my last election were my last election, and between now and 2018, Texans would opt for a smarter system. Hopeful? Yep. Optimistic? Nope.

My Take:

I found interesting the comment that unless an election is going on, Supreme Court judges have no name ID. As an experiment, I asked my legal assistant–who has been working in the industry for years–if she could name any Mississippi Supreme Court Justices. She couldn’t.

What percentage of non-attorney people in Mississippi could name a single Supreme Court Justice? I’m guessing it’s less than 5%. How would you feel about this if you were on the Mississippi Supreme Court? Vulnerable in every election cycle to a well funded opponent?

My point is I don’t want a Supreme Court Justice to have to feel anything about this. We need an appointed system that removes the issue from the equation.

There are fewer proponents of an elected judiciary than there used to be. But Justice Willett is right: that doesn’t mean that the system is going anywhere anytime soon.