JUDICIAL EXTERNSHIP SEMINAR
READING MATERIALS
VOLUME II
NEW YORK LAW SCHOOL
Fall 2005
Professor Craig Landy
Professor Mariana Hogan
TABLE OF CONTENTS
I. CLASS 4: THE JUDGE AS LITIGATION MANAGER ................................................ 1
NOTES & PROBLEMS ............................................................................................... 5
Judith Resnik, Managerial Judges 96 HARV. L. REV. 374 (1982) .................................. 6
John Burritt McArthur, Lessons for Judges from the Civil Justice Reform Act 83
JUDICATURE 222 (2000) ................................................................................................ 38
Paul M. Barrett, ‘Rocket Docket’: Federal Courts in Virginia Dispense Speedy
Justice WALL ST. J., December 3, 1987 ........................................................................ 46
Heather Russell Koenig, The Eastern District of Virginia: A Working Solution for Civil
Justice Reform 32 U. RICH. L. REV. 799 (1998) ........................................................... 51
Reference Materials
FED. R. CIV. P. 16 ...................................................................................................... 62
FED. R. CIV. P. 26 ..................................................................................................... 65
Individual Practices of Judge Denny Chin, July 15, 1998 ........................................ 72
Individual Rules and Procedures: Judge Shira A. Scheindlin,
Issued October 20, 2000 ............................................................................................ 75
II. CLASS 5: THE JUDGE’S ROLE IN SETTLEMENT ................................................ 85
NOTES & PROBLEMS ............................................................................................. 88
David B. Saxe, Anatomy of a Settlement 79 JUL A.B.A.J.52 (1993) ............................ 89
Carrie Menkel-Meadow, For and Against Settlement: Uses and Abuses of the
Mandatory Settlement Conference 33 UCLA L.REV. 485 (1985) .............................. 108
Kothe v. Smith, 771 F.2d 667 (2d Cir. 1985) ............................................................. 132
Brian J. Shoot, “Don’t Come Back Without a Reasonable Offer:”
Surprisingly Little Direct Authority Guides How Judges Can Move
Parties 76-MAY N.Y.St.B.J. 28 (2004) ..................................................................... 135
ii
Brian J. Shoot, “Don’t Come Back Without a Reasonable Offer:”
The Extent of, and Limits on, Court Power to Foster Settlement
76-APR N.Y.St.B.J. 10 (2004) ................................................................................... 147
III. CLASS 6: THE JUDGE’S ROLE AT TRIAL .......................................................... 157
NOTES & PROBLEMS ........................................................................................... 160
William W. Schwarzer and Alan Hirsch, Trial in the ELEMENTS OF CASE
MANAGEMENT (1991) ................................................................................................. 161
Honorable Shira A. Scheindlin, Conduct of Counsel at Trial .................................... 167
JONATHAN HARR, A CIVIL ACTION 285-288 (1995) ................................................... 169
U.S. v. Pisani, 773 F.2d 397 (2nd Cir. 1985) ............................................................... 173
U.S. v. Bejasa, 904 F.2d 137 (2nd Cir. 1990) .............................................................. 188
U.S. v. Mazzilli, 848 F.2d 384 (2nd Cir. 1988) ........................................................... 195
Santa Maria v. Metro-North Commuter Railroad, 81 F.3d 265 (2nd Cir. 1996) ......... 202
People v. Andre Arnold, 98 N.Y.2d 63 (2002) ........................................................... 215
iii
CLASS 4: THE JUDGE AS LITIGATION MANAGER
There is a general perception of a “litigation explosion” in this country.
Caseloads are heavy, and in many courts, rising. Courts struggle to reduce, or at least
control, persistent backlogs. How can the courts, which seem to be swimming against the
tide, hold their ground? The past several decades have seen an increased focus on
judicial case management. Some argue that it is judicial case management that has
contributed to keeping the court system’s head above water, but not everyone credits case
management with improving the pace, much less the quality, of justice. Read Professor
Resnik’s piece to understand the early criticism of “managerial judging.”
The Civil Justice Reform Act of 1990 (CJRA) was the embodiment in federal law
of the Congressional belief in judicial case management. Given the wide dissatisfaction
with the civil justice process shared by all participants–judges, attorneys, and parties,
Congress, informed by the Brookings Institution, the Foundation for Change, and surveys
conducted by Louis Harris and Associates, proposed a multi-year experiment in reform
designed to decrease cost and delay in the civil justice system. From the outset, the
legislation was controversial. While the goals of CJRA were widely shared, some judges
viewed the legislation “...as a congressional attempt to micromanage the federal
courts...”1 As a result, the final legislation left a great deal of discretion with the courts.
Nonetheless, the judiciary did not greet the CJRA with enthusiasm. Judge Majorie
Rendell sums up the typical criticism:
The CJRA plans put cases into nice little boxes
to be moved along at a fixed rate of speed. There is
little consideration of quality control, as such, but
1Carl
Tobias, Civil Justice Reform Sunset, 1998 U. ILL. L. Rev. 547 at 560.
1
the judge, wearing two hats--quality control and
assembly line monitor--knows that both aspects of
the case are her concern. Moving the case along
without concern for the substance of what is
happening is not only a useless act, but it just
doesn't work. Images of I Love Lucy with Lucy on
the assembly line in the candy factory come to
mind.2
The CJRA required each federal district court to formulate a civil justice expense
and delay reduction plan by December 1993. The purpose of these plans was “to
facilitate deliberate adjudication of civil cases on the merits, monitor discovery, improve
litigation management, and ensure just, speedy, and inexpensive resolutions of civil
disputes.”3 Each district was required to form an advisory group and develop a plan
based on the report and recommendations of the advisory group. The courts were to be
guided by eleven principles in the CJRA stressing enhanced case management,
streamlining of discovery, and increased reliance on ADR (alternative dispute resolution).
Also included in the Act were provisions for analysis of plans’ success. Ten
districts had pilot programs that would be evaluated by an independent entity, the Rand
Corporation, as well as the Federal Judicial Conference. By the beginning of 1997, all of
the analysis had been done. Needless to say, given the complexity of the problems, the
results were not straightforward. The Conference report concluded with a commitment to
continue efforts to increase the delivery of justice in civil litigation, but pessimistically
noted the challenges of civil justice reform. It is difficult to increase speed of disposition
without a cost to the quality of justice. In addition, the Conference recognized the
2Id.
328
U.S.C. 471 (1994).
2
tension between national uniformity of rules and local needs. The Judicial Conference
also voiced concern about the possibility of disparate impact of procedural reforms on
different kinds of litigants and on attorneys. The essay by attorney McArthur in your
readings takes a more jaundiced view of what went wrong with civil justice reform under
the CJRA. Do you agree?
Meanwhile, the local rules in use in the United States District Court for the
Eastern District of Virginia, dubbed the “rocket docket,” offer a long-standing example of
managerial judging. The Eastern District of Virginia is consistently lauded as one of the
most efficient courts in the country. Using the United States District Court for the
Eastern District of Virginia as a model, the Federal Trade Commission recently instituted
a “fast track” process for their administrative proceedings. The “rocket docket” relies on
some of the more heavy-handed tools of judicial case management–hard and fast dates
for trial and significantly restricted discovery. Think about the pros and cons of these
strategies as described in the article by Heather Russell Koenig. Note that despite the
“success” of the “rocket docket” in Virginia, the latest revisions to the Federal Rules of
Civil Procedure governing discovery and pre-trial conferences have stopped far short of
their strict deadlines and limitations.
Use the readings and your experiences at the court to explore the issues raised.
Draw your own conclusions about the "litigation explosion" and the judge's role as case
manager and expediter. What case management techniques have you seen your judge
employ? Pay particular attention to when and how your judge becomes involved in cases
and to who initiates the judge's involvement, the judge or the parties? Case management
takes many forms --judicial involvement in discovery, scheduling, and settlement are all
3
types of judicial management. To what extent does your judge control her calendar.
Does she employ any of the “rocket docket” techniques? Review the sets of Individual
Rules and Procedures Judge Scheindlin and Judge Chin give to counsel appearing before
them. They represent different styles of judicial management. What information, if any,
does your judge provide to counsel regarding her procedures? We will look at the special
questions raised by judicial involvement in settlement next week.
4
CLASS 4: NOTES & PROBLEMS
1. Prepare for class by doing a quantitative and qualitative assessment of your
judge's caseload.
a. How many cases does your judge carry? What is the average age of the cases pending
before your judge? How many cases are on a typical daily calendar in your part?
b. Does your judge's assignment limit her caseload to a particular type of case? What are
the pros and cons of limiting the judge's caseload to either civil or criminal cases or
further limiting it to certain specialized areas of criminal or civil law?
2. Evaluate the consequences of the judge's caseload. Think about how the
courtroom and chambers operate. What percentage of the judge's time is spent presiding
over trials and hearings? What percentage of her time is spent working in chambers?
What is the average length of time between the submission of a motion for decision and
the decision? What are the implications of your responses to these questions?
3. Scheduling issues. How are cases in your court scheduled? Who maintains the
calendar in your part? What issues dictate when cases are scheduled for conferences,
motions, hearings and trial? What factors does the judge consider when determining
whether to grant or deny an application for an adjournment? What effect(s) do you think
a "rocket docket" policy would have in your court?
5
Copyright © 1982 The Harvard Law Review Association.
Harvard Law Review
DECEMBER, 1982
96 Harv. L. Rev. 376
MANAGERIAL JUDGES
Judith Resnik *
...
Should you be called upon to function as a judge, do not be like the legal advisers
who offer to place their juridical knowledge at the service of the litigating parties....
[Y]ou must remain silent and abstain from interference in the arguments.... Do Not by
even so much as a gesture seek to influence either prosecution or defense.
--Commentary on the Mishnah (Pirke Avot) n1
There are no inherently protracted cases, only cases which are unnecessarily
protracted by inefficient procedures and management.
--Preface to the Manual for Complex Litigation n2
I. INTRODUCTION
UNTIL recently, the American legal establishment embraced a classical view of the
judicial role. Under this view, judges are not supposed to have an involvement or interest
in the controversies they adjudicate. Disengagement and dispassion supposedly enable
judges to decide cases fairly and impartially. The mythic emblems surrounding the
goddess Justice illustrate this vision of the proper judicial attitude: Justice carries scales,
reflecting the obligation to balance claims fairly; she possesses a sword, giving her great
power to enforce decisions; and she wears a blindfold, protecting her from distractions.
n3
Many federal judges have departed from their earlier attitudes; they have dropped the
relatively disinterested pose to adopt a more active, "managerial" stance. n4 In growing
numbers, judges are not only adjudication the merits of issues [*377] presented to them
by litigants, but also are meeting with parties in chambers to encourage settlement of
disputes and to supervise case preparation. Both before and after the trial, judges are
playing a critical role in shaping litigation and influencing results.
...
I believe that the role of judges before adjudication n13 is undergoing a change as
substantial as has been recognized in the posttrial phase of public law cases. Today,
federal district judges are assigned a case at the time of its filing and assume
6
responsibility for shepherding the case to completion. n14 Judges have described their
new tasks as "case management" n15 -- hence my term "managerial judges." As
managers, judges learn more about cases much earlier than they did in the past. They
negotiate with parties about the course, timing, and scope of both pretrial and posttrial
litigation. These managerial responsibilities give judges greater power. Yet the restraints
that formerly circumscribed judicial authority are conspicuously absent. Managerial
judges frequently work beyond the public view, off the record, with no obligation to
provide written, reasoned opinions, and out of reach of appellate review.
This new managerial role has emerged for several reasons. One is the creation of
pretrial discovery rights. The 1938 Federal Rules of Civil Procedure embodied
contradictory mandates: a discovery system ("give your opponent all information relevant
to the litigation") was grafted onto American adversarial norms ("protect your client
zealously" and therefore "withhold what you can"). In some cases, parties argued about
their obligations under the discovery rules; such disputes generated [*379] a need for
someone to decide pretrial conflicts. n16 Trial judges accepted the assignment and have
become mediators, negotiators, and planners -- as well as adjudicators. n17 Moreover,
once involved in pretrial discovery, many judges became convinced that their presence at
other points in a lawsuit's development would be beneficial; supervision of discovery
became a conduit for judicial control over all phases of litigation and thus infused
lawsuits with the continual presence of the judge-overseer.
Partly because of their new oversight role and partly because of increasing case loads,
many judges have become concerned with the volume of their work. To reduce the
pressure, judges have turned to efficiency experts who promise "calendar control." Under
the experts' guidance, judges have begun to experiment with schemes for speeding the
resolution of cases and for persuading litigants to settle rather than try cases whenever
possible. n18 During the past decade, enthusiasm for the "managerial movement" has
become widespread., n19 what began as an experiment is likely soon to become
obligatory. Unless the Supreme Court and Congress reject proposed amendments to the
Federal Rules, n20 pretrial judicial management will be required in virtually all cases.
[*380] In the rush to conquer the mountain of work, no one -- neither judges, court
administrators, nor legal commentators -- has assessed whether relying on trial judges for
informal dispute resolution and for case management, either before or after trial, is good,
bad, or neutral. Little empirical evidence supports the claim that judicial management
"works" either to settle cases or to provide cheaper, quicker, or fairer dispositions. n21
Proponents of judicial management have also failed to consider the systemic effects of
the shift in judicial role. Management is a new form of "judicial activism," a behavior
that usually attracts substantial criticism. n22 Moreover, judicial management may be
teaching judges to value their statistics, such as the number of case dispositions, more
than they value the quality of their dispositions. Finally, because managerial judging is
less visible and usually unreviewable, it gives trial courts more authority and at the same
time provides litigants with fewer procedural safeguards to protect them from abuse of
that authority. In short, managerial judging may be redefining sub silentio our standards
of what constitutes rational, fair, and impartial adjudication.
...
7
Until recently, federal judges rarely paid much attention to the filing of lawsuits. n45
Complaints were "file stamped" by court clerks, plaintiffs' checks were credited to the
United States, and marshals were dispatched to serve process on defendants. n46 Once
served, defendants were supposed to answer or seek dismissal within twenty days. n47
The time limit was an artifice, however, because parties commonly stipulated to extend
the deadline; months would pass before a defendant filed a responsive pleading. n48
Once an answer was filed, issue was "joined"; but again, a judge would take no notice.
Unless and until one of the parties requested some sort of judicial action (granting a
motion for summary judgment, a date for trial, a pretrial conference), most judges did not
intervene during the pretrial stage. n49 The parties might undertake discovery,
negotiate settlement, or let the case lie dormant for years -- all without judicial scrutiny.
Even when federal judges were brought into cases, they were not responsible for the
development of the cases. n50 Although [*385] judges occasionally conducted pretrial
conferences, n51 the scope and subject matter of these conferences were limited; judges
were not supposed to stress the desirability of settlement. As one court explained, for the
judge to "persist" at settlement efforts and then to "hear the case and render judgment...
inevitably raises... suspicion as to the fairness of the court's administration of justice."
n52 Yet despite the absence of judges' involvement, the vast majority of cases ended
without trial. n53
[*386] This traditional role was not limited to nineteenth century judges. As late as
1958, Professors Kaplan and von Mehren and Judge Schaefer marveled at the vigorous
efforts of German judges to convince parties to settle. n54 Ironically, their description
of the German judge -- "constantly descending to the level of the litigants, as an
examiner, patient or hectoring, as counselor and adviser, [and] as insistent promoter of
settlements" n55 -- now seems apt for the American judge as well. Federal judges who
passively await parties' pretrial requests are out of step with colleagues who have
implemented a new regime of procedures designed to speed case disposition. These
procedures bring cases to judges' attention shortly after filing and encourage judges both
to supervise case development before trial and to manage decree implementation after
trial.
...
B. The Sources of Judicial Management
It is useful in understanding the growth of managerial judging to distinguish (1)
changes in the role of judges necessitated by procedural innovations and the articulation
of new rights and remedies, from (2) changes initiated by judges themselves in response
to work load pressures.
1. The Influence of Discovery on the Pretrial Phase. -- Some aspects of pretrial
management are an inevitable result of the implementation of the discovery system in
1938. Before the Federal Rules of Civil Procedure were adopted, parties [*392]
preparing for trial were generally left to their own devices. n64 Creation of the new
discovery rights, however, shifted the locus of pretrial preparation. Litigants became
entitled to the court's help in obtaining from each other all unprivileged information
"relevant to the subject matter" of the lawsuit. n65 Thus, the domain of trial judges
grew.
8
Although many have discussed and analyzed discovery, n66 few have examined its
effect on the work of trial judges and the relationship between judges and litigants.
Consider, for instance, the contrast between Judge Kinser's role in ruling on the motion to
dismiss and his role in ruling on the defendant's motion for a protective order. In the
traditional passive mode, Danforth's motion to dismiss for lack of personal jurisdiction
was Judge Kinser's first contact with the case. To rule on the motion, Judge Kinser
needed little familiarity with the merits of the suit. He had only to consider Danforth's
business ties with Essex to decide whether it would be fair to require Danforth to appear
in the Essex federal court. n67 In traditional lawsuits, motions to dismiss -- even many
for summary judgment -- required minimal judicial involvement; judges retrospectively
evaluated the acts described by the parties in light of the applicable legal standards. n68
Indeed, judges often reached such decisions without ever speaking directly with the
parties or their lawyers. When ruling on most pretrial motions, judges kept their
blindfolds in place and their interest unpiqued.
...
The role of judges in ruling on discovery issues is qualitatively different from their
role in the traditional model. First, judges must immerse themselves in the factual details
of the case. Second, to decide discovery questions, judges must consider the parties'
litigating strategies: rather than engage in the traditional task of analyzing the legal
import of past events, Judge Kinser had to position himself as if he were each party's
lawyer and then guess about the future course of the suit. n69 What theories would
make Ms. Paulson's questions relevant? What evidentiary problems did she face? Had
she requested more information than was needed? Was Danforth's motion simply a tactic
to delay this products liability case while others more favorable to Danforth moved
forward? Could public disclosure of test data harm Danforth? Third, because the parties'
briefs seldom yield the insights needed to make these assessments, judges often must
engage in lengthy and informal conversations with the parties. Finally, by granting or
denying discovery requests, judges alter the scope of suits by making some theories and
proofs possible and others unlikely.
...
3. Management as a Quest for Efficiency. -- (a) Experimentation. -- The emergence
of managerial judging is not simply an artifact of discovery (which generates pretrial
supervision) or public law litigation (which generated posttrial supervision). Judges have
also become concerned with problems of their own -- the perception that the courts are
too slow, justice too expensive, and judges at least partly at fault. n76 Since the early
1900's, judges have attempted to respond to criticism of their efficiency by experimenting
with increasingly more managerial techniques.
Turn-of-the-century critics, led by Dean Roscoe Pound, n77 were dismayed by court
delay, technical and antiquated procedural rules, and inadequate substantive laws. In his
1906 speech to the American Bar Association, Dean Pound urged the bench and bar to
take responsibility for weaknesses in the administration of justice. n78 The concerns of
the legal establishment led to the creation of a society devoted exclusively to the study of
court administration n79 and eventually to the formulation of uniform procedures for the
federal courts.
9
[*396] In 1934, Congress expressly authorized the Supreme Court to write federal
rules of civil procedure. n80 Congress also preserved the power of all courts to
"prescribe rules for the conduct of their business." n81 When promulgating the new
Federal Rules in 1938, the Court confirmed the power of district courts to make "local"
rules, n82 and established "the just, speedy, and inexpensive determination of every
action" n83 as the goal of all judicial rulemaking. Further, the Supreme Court by case
law has confirmed trial judges' power over the pretrial phase. n84
Since 1938, the case load of the federal courts has increased significantly. n85
Several factors explain this growth. First, the population, and with it the number of
disputants willing to go to court, has grown. Second, Congress has created and the courts
have articulated a multitude of new rights and legally cognizable wrongs. n86 Third,
more lawyers are now available, and some of them offer legal services to litigants who
previously could not obtain such services. n87 Finally, Congress has provided for the
payment of attorneys' fees to various classes [*397] of victorious plaintiffs and has
thereby created new incentives to litigate. n88
In addition to increased case filings, motion practice under the discovery rules has
substantially increased the burdens of the federal court system. From their promulgation
in 1938 to the early 1960's, the discovery rules enjoyed a "honeymoon" of sorts with
judges and litigators. Both groups gradually learned how to use the new rules, which
were hailed as a great advance over prior practice. n89 But by the 1960's, commentators
began to worry about the uncertain scope of the discovery rules n90 and reports of
discovery "abuse." n91 Moreover, new technologies -- photocopiers and computers -enabled litigants to accumulate, store, retrieve, and duplicate vast quantities of
information. n92 This development, in turn, increased the complexity and volume of
data that could be requested and produced -- or withheld.
As work load pressures grew, reformers in the 1960's and 1970's shifted their
attention from procedural to administrative problems. Social scientists and popular
writers, investigating trial courts for the first time, n93 described growing backlogs of
pending cases and "lazy" judges devoting little time to their [*398] work. n94
Commentators, alarmed by delays and the absence of judicial accountability, proclaimed
a "crisis in the courts." n95
Many saw systems management as the solution. n96 Federal judges met to design
procedures for case allocation and to analyze methods of expediting case disposition.
n97 Congress created the Federal Judicial Center, n98 which began to train newly
appointed trial judges in techniques of docket management. n99 Congress also
authorized the courts of appeals to hire [*399] "circuit executives" to help in organizing
appellate court calendars. n100 A few district courts experimented with hiring
parajudicial personnel, such as pro se clerks and district court administrators. n101 To
increase judges' accountability and improve case processing, n102 federal courts
instituted an individual calendar system, under which district judges were assigned direct
responsibility for particular cases. n103 New recordkeeping systsms coupled with
computer technology permitted court administrators to gather, analyze, and distribute vast
amounts of information about cases. n104 Finally, some district courts promulgated
local rules that obliged litigants to submit pretrial plans, to conform to judicial timetables
for trial preparation, and to seek permission to engage in extensive discovery. n105
10
(b) Normalization. -- Over the past fifteen years, management advocates have
persuaded many colleagues of the desirability of the new techniques. n106
Amendments to the Federal Rules now pending before the Supreme Court would
mandate pretrial management in virtually all cases. n107 The proposed [*400]
revisions to rule 16 provide that a judge:
shall, after consulting with the attorneys for the parties and any unrepresented parties,
by scheduling conference, telephone, mail, or suitable means, enter a scheduling order
that limits the time (1) to join other parties and to amend the pleadings; (2) to serve and
hear motions; and (3) to complete discovery. n108
Under this new regime of judicial management, discovery disputes and efforts to
promote settlement would not be the only occasions upon which Judge Kinser would
become acquainted with the parties' attorneys and the details of lawsuits. Rather, by
virtue of rule 16, he would be obliged to issue pretrial orders within 120 days of filing of
a complaint. n109 To do so with any intelligence, he would need to learn a good deal
about the lawsuits to which he was assigned. n110
...
[F]ederal judges today devote substantial amounts of time to case management.
Only when informal discussions fail do judges take their places on the bench at formal
trials and hearings.
IV. THE RESULTS OF PRETRIAL MANAGEMENT
...
1. The Ambitions. -- Managerial judging's proponents, blurring organizational
theories n155 and utilitarianism, n156 believe that their new system of management
will permit improved allocation of judicial resources. Court services, particularly judges'
time, have become scarce commodities. A continually expanding number of consumers
are seeking access to the courts, but are forced to wait. One (apparent) cause for the wait
is the queue n157 -- the line created by claimants [*415] already waiting for judicial
services. A second cause comes from some claimants, already in the courthouse, who
appear to abuse their places at the head of the line by monopolizing court time.
Attorneys, motivated by their own interests or those of their clients, seem to be the
critical actors in the apparent misuse of court resources. n158
According to proponents of judicial management, judges are the only advocates for
the claimants waiting at the end of the queue and for the public, which benefits from and
pays for the dispute resolution system. n159 Therefore, judges should take charge of the
system and allocate their time in a prudent, coherent, and fair manner. n160 They
should speed cases at the head of the line and discipline litigants who waste resources.
The result would be an efficient court system, which (like the end of every other
utilitarian tale) would in turn produce the greatest good for the greatest number of people.
2. Some Successes. -- In large part, the existence of managerial judging depends
upon information about case processing. To meet this need, court administrators have
developed systems to gather and compile data. The result is unquestionably [*416]
beneficial; managerial judging has led to a wealth of new information about the federal
courts.
11
We now know more about the number, type, and disposition of cases. n161 With
this information comes enhanced accountability. The Administrative Office of the
United States Courts learns how many and which cases belong to each judge, whose case
load is growing, and whose is diminishing. With monthly computer printouts, individual
judges can no longer "lose" cases or hide behind an uncalculated morass of motions.
Dissemination of the new information makes courts more visible; the very counting of
cases is an event that the national media report each year. The information also provides
a basis for suggestions about how to improve case processing. n162 For example,
researchers from the Federal Judicial Center study district courts' local rules and practices
to identify ways of increasing judges' productivity. n163 Further, court data may aid the
judiciary in persuading Congress to create new judgeships and to augment salaries and
support staff. n164
Managerial judging may also be credited with some increase in attorney
accountability. Judicial control of lawsuits [*417] presumably forces attorneys to
prepare and manage their clients' cases more rapidly and efficiently. Breaches of
judicially imposed schedules could provide clients with consumer information about
attorney malfeasance and give bar committees data for disciplinary proceedings.
3. The Limits of Success. -- No one can oppose efforts to curtail exploitation of the
judicial system, to make dispute resolution quick and inexpensive, or to increase the
accountability of judges and attorneys. I do, however, question the extent to which
managerial judging contributes to these worthy aims and whether it is wise to rely on
judges to achieve these goals.
Proponents of managerial judging typically assume that management enhances
efficiency in three respects. They claim that case management decreases delay, produces
more dispositions, and reduces litigation costs. n165 But close examination of the
currently available information reveals little support for the conclusion that management
is responsible for efficiency gains (if any) at the district court level, and strong reason to
suspect that many of the purported efficiency gains in the district courts are illusory.
(a) Decreasing Delay. -- (i) Application of the Appellate Court Experience to District
Courts. -- The evidence does suggest that judicial management has reduced delays at the
appellate level. Court critics focused early on the circuit courts, n166 some of which
were taking more than twelve months after oral argument to render decisions. n167 In
response to criticism, most circuit courts have asserted greater control over both litigants
and district judges. Circuit court rules now impose strict schedules for attorneys to
transmit records, compile appendices, and brief issues. n168 Further, some circuits have
won authorization for additional judgeships and support personnel and have streamlined
their procedures for assigning [*418] cases and writing opinions. n169 These reforms
appear to have been effective. Statistics indicate that the interval from filing to appeal
has decreased in most circuits. n170 The chief judge of one circuit proudly described
his court as the "fastest" in the country; it decided virtually all appeals within six months
of submission. n171
Encouraged by these gains, proponents of managerial judging may have been unduly
optimistic about the prospects for improvement at the trial court level. In their rush to
cure the perceived ills of the lower courts, management advocates have blurred the
12
distinctions between the two levels of the judiciary.
Appellate work is amenable to control for several reasons. It can be divided into
distinct segments, and the procedural options are few. By the time cases reach the
appellate level, their essential untidiness has been reduced, or at least frozen, into a
record. Further, cases on appeal often present judges with a single issue to decide.
Finally, only two sets of actors must perform in appellate courts: the attorneys, who
follow an established ritual in presenting the case, and the judges, who sit in panels of
three. Thanks to preplanning -- scheduling of arguments carefully, enforcing time limits
for the filing of briefs, and asking judges to reach and report dispositions swiftly -- this
small group of actors has become better coordinated, a result that has enabled appellate
judges to decide cases more quickly. n172
But what works for the courts of appeals cannot simply be transplanted into trial
courts. Prompt action in the trial courts depends on the performance not only of judges
and attorneys, but also of a large supporting cast: the parties, lay and expert witnesses,
and sometimes jurors. These actors do not perform identical roles in every case.
Moreover, even in a relatively simple case, the parties may follow any of several
procedural routes, attempt to discover sparse or voluminous information, [*419] engage
in brief or extended pretrial business, and present the court with few or many issues to
decide. Thus, no single plan can be devised to comprehend all of the varieties of pretrial
preparation.
Appellate court reforms provide an inexact model for trial courts for another reason.
We can achieve, with relative ease, a shared perception of the amount of time it "should"
take to prepare a record, an appendix, or a brief and the amount of time it "should" take to
decide an appeal. We all know that most briefs can be prepared within a few days -weeks at the most -- and that opinions can be written within a similar time frame.
Moreover, the complexity of a case is unlikely to add more than a few days or weeks to
any appellate timetable.
When we turn to the lower courts, however, it is more difficult to determine the
"right" amount of time to prepare a case for trial. The scope of issues and the number of
actors vary greatly among cases as well as throughout the evolution of any single case.
Case complexity at the trial level can reasonably require postponement of deadlines not
merely by days or weeks but by months or years. As of 1980, the median time for a case
to move from filing to disposition in federal district court was eight months. For cases
that were tried, the interval was twenty months. n173 Given the variety of cases
comprehended by these figures, I (for one) do not know whether such data should be
greeted with pleasure or dismay. It is difficult to decide whether the pace of a given trial
court is "wrong" (in some moral sense) or too "slow" (under some utilitarian calculus).
And researchers who have studied questions of pace are unable to agree on what pace is
appropriate, what pace too slow. n174
(ii) Difficulties of Evaluation. -- If we were to assume that the pace of some civil
litigation had been unduly delayed, we would encounter problems in assessing the claim
that judicial management speeds case processing. Empirical investigation is hampered
because data collection at the trial court level is a relatively new phenomenon and even
current techniques are of questionable accuracy. n175 Moreover, valid comparisons
13
[*420] among district courts are elusive in light of differences in case loads, local rules,
and substantive circuit law. As a result, careful researchers find it difficult to sort out
static observations from trends.
Even when we find that some managerial trial courts do have faster dispositions than
other trial courts, n176 we have great difficulty identifying the causes of the difference.
Cases are filed, withdrawn, settled, or dismissed for a variety of reasons, including,
changes in legislation, new appellate decisions, shifts in business practices, and
fluctuations in the availability of attorneys. Although it is theoretically possible to
control for such variables, researchers are hampered by the absence of firsthand,
unfiltered information about why cases conclude as they do. The participants are not
likely to give frank explanations of what prolonged a case or brought it to a quick close:
attorneys must respect client confidences; litigants are caught up in adversarial
relationships; judges have an interest in privacy. The reports that are obtained must be
discounted by the inaccuracy of memory and the narrowness of each participant's
perspective. n177 Consequently, it is difficult to isolate and weigh the actual effect (if
any) of managerial judging on the speed of trial court dispositions. n178 Few
researchers [*421] have even entered this thicket; management advocates rely instead
on anecdote and intuition to support their claims. n179
(b) Increasing the Number of Dispositions. -- As a measure of judicial productivity,
the number of dispositions is partly a function of disposition speed. If cases are disposed
of quickly, the time saved can be used to consider more cases. Management advocates
also claim that judges' efforts to channel litigation into more "efficient" methods of
dispute resolution, such as settlement, have improved the administration of justice by
increasing the total number of dispositions. n180 But again empirical moorings are
wanting; no data firmly support the conclusion that judicial intervention results in more
settlements than would otherwise have occurred. n181
[*422] Moreover, the claim that "the more dispositions, the better," raises difficult
valuation tasks; decisionmaking must be assessed not only quantitatively, but also
qualitatively. On any given day, are four judges who speak with parties to sixteen
lawsuits and report that twelve of those cases ended without trial more "productive" than
four judges who preside at four trials? Is it relevant to an assessment of "productivity"
that three of these four trials are settled after ten days of testimony? Or that, in the one
case tried to conclusion, the judge writes a forty-page opinion on a novel point of law that
is subsequently affirmed by the Supreme Court and thereafter affects thousands of
litigants? Measuring judicial accomplishment is complex. Scales designed to measure
achievement in other institutions cannot simply be imported into the courtroom. n182
(c) Reducing Costs. -- Management advocates assume that judicial supervision not
only saves time and produces more dispositions, but also limits the ability of litigants to
impose unfair financial pressure on their opponents and of attorneys to make excuses for
excessive billing. Proponents therefore conclude that managerial judging reduces courts'
and litigants' [*423] costs. n183 But no data exist to support this conclusion. n184 If
we rely instead on intuition, it is not obvious that judicial supervision averts costly
adversarial decisions or attorney misconduct. First, some lawyers use every occasion for
contact with judges to argue their clients' cases. Thus, supervision itself can present
further opportunities for vigorous adversarial encounters. n185 Second, as Danforth's
14
response to Ms Paulson's interrogatories suggests, the line between misconduct and
aggressive but ethical representation is difficult to divine. n186 Third, even with
judicial oversight, lawyers may be able to hide their misconduct; procedural innovations
may simply force attorneys to develop new techniques of obfuscation and avoidance,
skills presumably well developed by the bar.
Moreover, judicial management itself imposes costs. n187 The judge's time is the
most expensive resource in the courthouse. n188 Rather than concentrate all of their
energy deciding motions, charging juries, and drafting opinions, managerial [*424]
judges must meet with parties, develop litigation plans, and compel obedience to their
new management rules. Managerial judges have more data sheets to complete, more
conferences on new management techniques to attend, and ever more elaborate local
procedural rules to draft and debate. Even when some of these tasks are delegated to
staff, n189 administrative structures must be put into place and then supervised. And
although litigants and judges can contain costs by relying on conference calls and written
exchanges; n190 they still spend substantial time and money. Further, because many
cases settle without judicial intervention, management may require judges to supervise
lawsuits that would have ended of their own accord, lawsuits that would not have
consumed any judicial resources.
We are not yet able to reach any firm conclusions on whether and how management
reduces costs. n191 Until we have data on the number of judge-hours that management
consumes and saves, as well as information regarding the effect of management on
parties' costs, we cannot calculate the net costs of managerial judging and thereby learn
whether we have conserved resources. And if we include in our calculation the
additional costs discussed below -- such as the possibility of error, the decline of
ceremony, and the loss of public participation -- our equation becomes even more
complex.
In sum, I am skeptical of claims that management increases judicial productivity at
reduced costs. Data are not available to support most of those conclusions, and intuition
does not compel them. Moreover, managerial proponents have not even considered the
effects of judicial management on the nature of adjudication.
B. The By-products of Judicial Management: The Erosion of Traditional Due Process
Safeguards
In the rush to conquer case loads, few proponents of managerial judging have
examined its side effects. Judicial management [*425] has its own techniques, goals,
and values, which appear to elevate speed over deliberation, impartiality, and fairness.
Ironically, the growth of federal judges' interest in management has coincided with their
articulation of due process values, their emphasis on the relationship between procedure
and just decisionmaking. n192
1. Vast New Powers. -- Judges are very powerful: they decide contested issues, and
they alone can compel obedience by the threat of contempt. As a result, those subject to
judges' authority may challenge it only at great risk. Under the individual calendar
system, a single judge retains control over all phases of a case. Thus, litigants who incur
a judge's displeasure may suffer judicial hostility or even vengeance with little hope of
15
relief.
n193
Transforming the judge from adjudicator to manager substantially expands the
opportunities for judges to use -- or abuse -- their power
...
In addition to enhancing the power of judges, management tends to undermine
traditional constraints on the use of that power. …[Judges]… create rules for the lawsuit,
such as discovery timetables, but …[they are]… not forced to submit …[their] ideas to
the discipline of a written justification or to outside scrutiny.
[*426] …[D]ecisions…[are]…made privately, informally, off the record, and
beyond the reach of appellate review.
Further, no explicit norms or standards guide judges in their decisions about what do
demand of litigants. What does "good," "skilled," or "judicious" management entail?
Judge[s]…[hope]...to speed pretrial preparation, because …[they think]… quick
preparation …[is]… better than slow preparation. …[They have]… no guidelines, other
than …[their]… own intuition, to inform …[them]… what …[is]… too slow or too fast.
...
Given the lack of established standards, judges are forced to draw on their own
experience. Judges certainly are familiar with the problems of the courts; they were
among the first to identify the need for reform. But awareness of the problems does not
necessarily qualify judges to design the solutions, especially on an individual, ad hoc
basis. As familiar adages discouraging self-medication by doctors and self-representation
by lawyers suggest, n196 self-interest often makes professionals less objective,
dispassionate, and adept at their work. Moreover, judges may well overestimate the
extent of their wisdom. Many have been trial lawyers; they have some appreciation for
which litigant tactics are well founded and which are dilatory. But because few have
practiced in all of the diverse areas of federal court jurisdiction, they may reach illfounded conclusions in cases about which they really know very little.
2. The Threat to Impartiality. -- Privacy and informality have some genuine
advantages; attorneys and judges can discuss discovery schedules and explore settlement
proposals [*427] without the constraints of the formal courtroom environment. But
substantial dangers also inhere in such activities. The extensive information that judges
receive during pretrial conferences has not been filtered by the rules of evidence. Some
of this information is received ex parte, a process that deprives the opposing party of the
opportunity to contest the validity of information received. Moreover, judges are in close
contact with attorneys during the course of management. Such inter-actions may become
occasions for the development of intense feelings -- admiration, friendship, or antipathy.
Therefore, management becomes a fertile field for the growth of personal bias. n197
Further, judges with supervisory obligations may gain stakes in the cases by they
manage. Their prestige may ride on "efficient" management, as calculated by the speed
and number of dispositions. Competition and peer pressure may tempt judges to rush
litigants because of reasons unrelated to the merits of disputes. n198 For example,
Judge Kinser had interests of his own when he was was advising settlement: he wanted
Paulson off his calendar.
16
In the past, such exposure to parties and issues and such a comparable interest in the
proceedings might have resulted in recusal or disqualification. Despite a flexible
approach to the procedural safeguards required to ensure due process, n199 [*428] the
Supreme Court has consistently required an "impartial" judge n200 -- an individual with
no prior involvement or interest in the dispute. Interest is broadly defined; indirect as
well as direct benefits suffice to require disqualification. n201 Statutory disqualification
rules, n202 recently amended and made more stringent, n203 impose similar limits that
disqualify judges with only a minute financial interest in the controversies before them.
n204 Nevertheless, neither the Supreme Court, the lower federal courts, nor Congress has
considered the effect of judicial management on impartiality.
I recognize that case management is not the only anomaly in the rules governing
judicial disqualification and recusal. Many current practices assume that trial judges can
compartmentalize their minds, disregard inappropriate evidence, and reconsider past
decisions in light of new information. n205 Motions to reconsider, reduce sentences,
and vacate convictions, n206 [*429] as well as most appellate remands, n207 are
decided by the very judges whose prior decisions are being challenged. I find these
practices inconsistent with common perceptions of impartial adjudication. Yet
reconsideration by the same judge who first heard a case is far less worrisome than fact
finding by the judge who managed the case. As "repeat adjudicators," n208 judges are
generally confined to the record. They rely upon traditional adversarial exchanges,
publicly explain their decisions, and know that their work may be reviewed on appeal. In
contrast, as pretrial case managers, judges operate in the freewheeling arena of informal
dispute resolution. n209 [*430] Having supervised case preparation and pressed for
settlement, judges can hardly be considered untainted n210 if they are ultimately asked
to find the facts and adjudicate the merits of a dispute.
Unreviewable power, casual contact, and interest in outcome (or in aggregate
outcomes) have not traditionally been associated with the "due process" decision making
model. n211 These features do not evoke images of reasoned adjudication, n212
images that form the very basis of both our faith in the judicial process n213 and our
enormous grant of power to federal judges. The literature of managerial judging refers
only occasionally to the values of due process: the accuracy of decision making, the
adequacy of reasoning, and the quality of adjudication. n214 Instead, commentators and
the training sessions for district judges emphasize speed, control, and quantity. n215
District court chief judges boast of vast statistics on [*431] the number of cases
terminated, the number and type of discrete events (such as trial days and oral arguments)
supervised, and the number of motions decided. n216 The accumulation of such data
may cause -- or reflect -- a subtle shift in the values that shape the judiciary's
comprehension of its own mission. Case processing is no longer viewed as a means to an
end; instead, it appears to have become the desired goal. n217 Quantity has become all
important; quality is occasionally mentioned and then ignored. Indeed, some
commentators regard deliberation as an obstacle to efficiency. n218
Proponents of management may be forgetting the quintessential judicial obligations
of conducting a reasoned inquiry, articulating the reasons for decision, and subjecting
those reasons to appellate review -- characteristics that have long defined judging and
distinguished it from other tasks. n219 Although the sword remains in place, the
17
blindfold and scales have all but disappeared.
V. THE RELEVANCE OF ROBES
In the preceding discussion, I have argued for reflection before we plunge headlong
into judicial management. I do [*432] not mean to suggest, however, that adjudication
must be frozen into earlier forms or that more efficient decisionmaking is an unworthy
aim. Rather, as we reorient the judicial system to accommodate contemporary demands,
I believe that we should preserve the core of adjudication. To help judges remain
impartial, we should limit the flow of untested information. To ensure that judges have
the time and patience for deliberation, we should refrain from giving them too many
distracting new responsibilities. To hold judges accountable for the quality -- not merely
the quantity -- of their actions, we should require judges to act in public and to state
reasons for their decisions.
...
VI. CONCLUSION
Ideas about statutory timetables for litigation, diverse procedural rules for different
categories of cases, alternative dispute resolution centers, curtailed discovery rights,
state-controlled case preparation, limitations one court access, and penalties for those
who do not settle lawsuite should give us pause, for these reforms would drastically alter
the civil litigation world. But equally far-reaching changes, instituted by the judiciary
itself and carried out in the name of increased efficiency, are already under way.
Unfortunately, these changes are being carried out piecemeal and with little reflection on
their cumulative implications for the adversarial system.
If, as many of their critics assert, the courts cannot meet the demands they face,
revamping adjudication may well be appropriate. But if the time to reappraise the
process of adjudication has arrived, the work should not be left to the judiciary, its
support staff, a handful of academics, or a few American Bar Association committees.
Rather, the hard questions about pace (how quickly should lawsuits proceed?), allocation
of authority (should the pace be decided by judges, the parties, or Congress?), and the
continued existence of the adversary process (who should be responsible for case
investigation, preparation, and presentation?) should be subjected to a more searching
and free-ranging public debate.
Some may argue that, even if an inquiry into judicial management techniques is
necessary, judges -- joined by a select group of lawyers and scholars -- have all of the
expertise necessary to decide how courts should be run. n273 But I join others who
advocate a more broad-based investigation of what judges should do and which rules
should govern their behavior. Although judges can and should exercise substantial
authority over court procedures, the framers of the Constitution foresaw the need for
Congress to play a role in structuring the nation's judicial business. n274 The problems
raised by managerial judging, problems that implicate the rights of all citizens, [*445]
are simply too important to be left to the discretion of judges alone.
In the debate over appropriate responses to the increasingly heavy work load of the
federal courts, I am concerned about preserving the uniqueness of the judicial function.
Seduced by controlled calendars, disposition statistics, and other trappings of the
18
efficiency era and the high-tech age, managerial judges are changing the nature of their
work. The old judiciary was doing something different from the modern managerial
ideal, something quite out of step with the world of time and motion studies. Among all
of our official decisionmakers, judges -- and judges alone -- are required to provide
reasoned explanations for their decisions. Judges alone are supposed to rule without
concern for the interests of particular constituencies. Judges alone are required to act
with deliberation -- a steady, slow, unhurried task.
I want to take away trial judges' roving commission and to bring back the blindfold. I
want judges to balance the scales, not abandon them altogether in the press to dispose of
cases quickly. No one has convincingly discredited the virtues of disinterest and
disengagement, virtues that form the bases of the judiciary's authority. Our society has
not yet openly and deliberately decided to discard the traditional adversarial model in
favor of some version of the continental or inquisitorial model. n275 Until we do so,
federal judges should remain true to their ancestry and emulate the goddess Justicia. I
fear that, as it moves closer to administration, adjudication may be in danger of ceasing to
be.
...
FOOTNOTES:
n1 CHAPTERS OF THE FATHERS (PIRKE AVOT) 12 (S.R. Hirsch trans. &
comm., G. Hirschler trans. 1967) (quotation taken from the Hirsch commentary).
n2 MANUAL FOR COMPLEX LITIGATION at ii (5th ed. 1982).
n3 See infra pp. 382-83; see also infra pp. 446-48 (discussing imagery of Justice).
n4 I focus on changes in the federal courts, but similar changes are underway in many
state courts. See P. EBENER, COURT EFFORTS TO REDUCE PRETRIAL DELAY
(1981); L. FREEDMAN, STATE LEGISLATION ON DISPUTE RESOLUTION (1982).
n13 I use the term "adjudication" to describe a dispute resolution process in which
judges employed by the government make decisions based upon information presented
by the parties. Judges decide motions, preside at trials and hearings, and sometimes find
facts. When ruling, judges are obliged to provide reasoned explanations for their
decisions, and the parties, in turn, are obliged to obey. See Fuller, The Forms and Limits
of Adjudication, 92 HARV. L. REV. 353 (1978); see also Moore, The Semantics of
Judging, 54 S. CAL. L. REV. 151, 152-56 (1981) (similar description of adjudicatory
process). Adjudication is distinct from -- but includes elements of -- other forms of
dispute resolution, see M. SHAPIRO, COURTS 1-64 (1981), and is not the only task
performed by judges, see Schwartz, The Other Things that Courts Do, 28 UCLA L. REV.
438 (1981).
n14 See S. FLANDERS, CASE MANAGEMENT AND COURT MANAGEMENT
IN THE UNITED STATES DISTRICT COURTS (1977); Peckham, The Federal Judge
as a Case Manager: The New Role in Guiding a Case from Filing to Disposition, 69
CALIF. L. REV. 770 (1981); Rubin, The Managed Calendar: Some Pragmatic
Suggestions About Achieving the Just, Speedy, and Inexpensive Determination of Civil
Cases in Federal Courts, 4 JUST. SYS. J. 135 (1978); Schwarzer, Managing Civil
Litigation: The Trial Judge's Role, 61 JUDICATURE 400 (1978); see also Brazil,
19
Improving Judicial Controls over the Pretrial Development of Civil Actions: Model Rules
for Case Management and Sanctions, 1981 AM. B. FOUND. RESEARCH J. 875
(discussing management of pretrial discovery).
n15 Constantino, Judges as Case Managers, TRIAL, Mar. 1981, at 56, 57-60;
Peckham, Supra note 14, at 770-73.
n16 See Brazil, The Adversary Character of Civil Discovery: A Critique and
Proposals for Change, 31 VAND. L. REV. 1295, 1298-1305 (1978); Nordenberg, The
Surpreme Court and Discovery Reform: The Continuing Need for an Umpire, 31
SYRACUSE L. REV. 543, 545-53 (1980). But see Shapiro, Some Problems of Discovery
in an Adversary System, 63 MINN. L. REV. 1055, 1090-92 (1979) (arguing that, if
discovery rules were amended, they would strike a better balance between pretrial
disclosure and the adversary system).
n17 In mediation, a third party does not impose an outcome but attempts to work a
compromise between disputants. See Fuller, Mediation -- Its Forms and Functions, 44 S.
CAL. L. REV. 305, 325 (1971). In negotiation, the parties bargain with each other using
economic and other forms of leverage to achieve mutually acceptable outcomes. See
generally Eisenberg, Private Ordering Through Negotiation: Dispute-Settlement and
Rulemaking, 89 HARV. L. REV. 637 (1976) (discussing norms and rules that author
believes order private parties' behavior during negotiation). For a discussion of the issues
raised by alternative dispute resolution systems, see Dispute Processing and Civil
Litigation, 15 LAW & SOC'Y REV. 395 (1980-1981).
n18 See, e.g., M. ROSENBERG, THE PRETRIAL CONFERENCE AND
EFFECTIVE JUSTICE (1964); Aldisert, A Metropolitan Court Conquers Its Backlog, 51
JUDICATURE 247 (1968); Fisher, Judicial Mediation: How It Works Through Pre-Trial
Conference (pt. 2): From Pure Pre-Trial to Compulsory Settlement Conferences, 10 U.
CHI. L. REV. 453 (1943); Murrah, Pre-Trial Procedure: A Statement of Its Essentials, 14
F.R.D. 417, 420 (1953).
n19 See, e.g., FED. R. CIV. P. 16 advisory committee note (Discussion Draft 1982),
reprinted in Excerpt from the Report of the Judicial Conference Committee on Rules of
Practice and Procedure at 11, 12-13 (Sept. 1982) (on file in Harvard Law School Library)
[hereinafter cited as Judicial Conference Excerpt]; Brazil, supra note 14, at 884 (citing
Peckham, supra note 14).
n20 See FED. R. CIV. P. 16(b) (Discussion Draft 1982), reprinted in Judicial
Conference Excerpt, supra note 19, at 8. For an earlier version of the proposed
amendments to rule 16, see Preliminary Draft of Proposed Amendments to the Federal
Rules of Civil Procedure, 90 F.R.D. 451, 466-78 (1981).
n21 see infra pp. 417-24.
n22 see, e.g., D. HOROWITZ, supra note 10; Address by Attorney General William
French Smith to the ABA House of Delegates (Jan. 25, 1982) (on file in Harvard Law
School Library).
n45 Judges sometimes learned about lawsuits before trial when, for example,
plaintiffs sought a temporary restraining order or preliminary injunction.
20
n46 FED. R. CIV. P. 4(c). For pending revisions of rule 4, see Amendments to the
Federal Rules of Civil Procedure, 93 F.R.D. 255 (1982), effective date postponed, 97
F.R.D. 223 (1982).
n47 FED. R. CIV. P. 12(a).
n48 See Rubin, supra note 14, at 138.
n49 See Fisher, supra note 18, at 457; see also Clark, Objectives of Pre-trial
Procedure, 17 OHIO ST. L.J. 163 (1956) (describing the purposes of pretrial
conferences).
n50 Modern proponents of judicial management assume that most managerial judging
efforts represent a sharp break with past practic. See, e.g., Flanders, Case Management in
Federal Courts: Some Controversies and Some Results, 4 JUST. SYS. J. 147, 147 (1978)
("Judicial supervision of the civil docket is a relatively new phenomenon in American
courts. Even in the federal courts, where it is best established, its antecedents do not go
back more than a generation or so.").
Given that judges' pretrial activities are unlikely to be recorded, data on pretrial
conferences and settlement efforts are sketchy. There bases from which to infer that
some judges assumed supervisory roles earlier in this century, see sources cited supra
note 49, and in the 18th and 19th centuries, see, e.g., M. TACHAU, supra note 43, at 85;
see also H. SCOTT, THE COURTS OF THE STATE OF NEW YORK 43-44 (1909)
(reporting that, in 17th century colonial courts in New York, judges referred especially
complex cases to arbitrators, whose duty was to settle cases out of court). See generally
Randall, Conciliation as a Function of the Judge, 18 KY. L.J. 330, 340 (1930) (urging
American judges to adopt "conciliation" techniques that had been "widespread... in
foreign countries for hundreds of years"). For a 16th century description of settlement
efforts, see F. RABELAIS, GARGANTUA AND PANTAGRUEL bk. 3, at 141-44 (J.
LeClercq trans. 1936, ed. 1942).
n51 See M. ROSENBERG, supra note 18, at 210-11 (New Jersey and three other
states have had some form of mandatory pretrial conferences); 6 C. WRIGHT & A.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1522 (1971) (some district
judges held pretrial conferences primarily to prepare for trial; settlement was discussed
occasionally); Holtzoff, Origin and Sources of the Federal Rules of Civil Procedure, 30
N.Y.U. L. REV. 1057, 1068 (1955) (a few federal district courts during the early 1940's
made pretrial conferences mandatory).
n52 Krattenstein v. G. Fox & Co., 155 Conn. 609, 615, 236 A.2d 466, 469 (1967).
Because pretrial conferences were more common in state than federal courts until
recently, state appellate courts were the principal commentators on the proper judicial
role, which they saw to be limited. See, e.g., Rosenfield v. Vosper, 45 Cal. App. 2d 365,
372, 114 P.2d 29, 33 (1941) (error for judge to instruct attorneys to tell their clients that
"it would be to their best interests to settle"); Gullet v. McCormick, 421 S.W.2d 352, 354
(Ky. 1967) (pretrial conference should not be used to compel settlement); Knickerbocker
v. Beaudette Garage Co., 190 Wis. 474, 481, 209 N.W. 763, 765 (1926) (judiciary should
not "exalt the idea of... disposing of matters in litigation above the constitutional purposes
for whcih our courts [were] created"). But see Gardner v. Mobil Oil Co., 217 Cal. App.
21
2d 220, 226, 31 Cal. Rptr. 731, 735 (1963) (judge who indicated his tentative conclusions
and proposed a settlement figure not guilty of misconduct); Madrigale v. Corrone, 5
Conn. Cir. Ct. 521, 529, 258 A.2d 102, 106 (App. Div. 1968) (in case in which judge did
not participate in negotiations either before or during trial, his urging both counsel to
settle was not improper); Washington v. Sterling, 91 A.2d 844, 845 (D.C. 1952) ("[A]
trial court ought not to force a settlement... but [may suggest] the advisability of
settlement.").
n53 See Clark & Moore, A New Federal Civil Procedure: Pleadings and Parties (pt.
2), 44 YALE L.J. 1291, 1294 & n.8 (1935) (study showed that approximately 70% of all
civil cases filed in federal courts did not reach a judge or jury decision).
n54 Kaplan (pt. 1), supra note 24, at 1223.
n55 Id. (pt. 2) at 1472.
n64 Discovery as we know it today was unavailable for common law causes of action
in the federal courts; limited discovery was allowed in actions in equity. See Millar, The
Mechanism of Fact-Discovery, 32 ILL. L. REV. 424, 449 (1937); cf. Sunderland, Scope
and Method of Discovery Before Trial, 42 YALD L.J. 863, 869-77 (1933) (discussing
state court innovations with respect to common law discovery).
n65 Fed. R. Civ. P. 26(b), 28 U.S.C. § 5 (1940). Depositions could be taken only
upon leave of the court after jurisdiction had been obtained, or without leave of the court
after an answer had been served. Fed r. Civ. P. 26(a), 28 U.S.C. § 5 (1940). Documents
were to be produced for inspection upon the motion of any party showing good cause.
Fed R. Civ. P. 34, 28 U.S.C. § 5 (1940).
n66 See, e.g., ABA SECTION OF LITIGATION, REPORT OF THE SPECIAL
COMMITTEE FOR THE STUDY OF DISCOVERY ABUSE (1977), reprinted in ABA
Section of Litigation, Second Report of the Special Committee for the Study of
Discovery Abuse, 92 F.R.D. 137 (1980) [hereinafter cited as ABA REPORT ON
DISCOVERY ABUSE]; J. EBERSOLE & B. BURKE, DISCOVERY PROBLEMS IN
CIVIL CASES (1980).
n68 See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-61 (1970) (standard
for granting motion for summary judgment under rule 56); Conley v. Gibson, 355 U.S.
41, 43-48 (1957) (standard for granting motion to dismiss under rule 12(b)).
n76 See, e.g., Burger, Agenda for 2000 A.D. -- A Need for Systematic Anticipation,
70 F.R.D. 83 (1976) (speech to the National Conference on the Causes of Popular
Dissatisfaction with the Administration of Justice (the Pound Conference)) [hereinafter
cited as Burger, Agenda]; Burger, Isn't There a Better way?, 68 A.B.A. J. 274 (1982)
(annual report to the ABA on the State of the Judiciary). See generally D. NELSON,
JUDICIAL ADMINISTRATION AND THE ADMINISTRATION OF JUSTICE (1974)
(discussing problems in court management).
n77 See Pound, The Causes of Popular Dissatisfaction with the Administration of
Justice, 29 A.B.A. REP. 395 (1906); Wigmore, Roscoe Pound's St. Paul Address of 1906:
The Spark that Kindled the White Flame of Progress, 20 J. AM. JUDICATURE SOC'Y
176 (1937).
22
n78 Pound, supra note 77, at 417.
n79 See Winters, The American Judicature Society and Its Work, 19 CONN. B.J. 67
(1945).
n80 Rules Enabling Act of 1934, ch. 651, § § 1, 2, 48 Stat. 1064, 1064 (recodified as
amended at 28 U.S.C. § 2072 (1976)). Federal courts have inherent power to make rules
for the orderly conduct of their business. See Heckers v. Fowler, 69 U.S. (2 Wall.) 123
(1865).
n81 28 U.S.C. § 2071 (1976 & Supp. IV 1980). Statutory authority for local
rulemaking had been provided since 1793. See Act of Mar. 2, 1793, ch. 22 § 7, 1 Stat.
333, 335.
n83 FED. R. CIV. P. 1.
n84 See Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980); National Hockey
League v. Metropolitan Hockey Club, 427 U.S. 639 (1976) (per curiam); Link v. Wabash
R.R., 370 U.S. 626 (1962).
n85 Compare AMERICAN LAW INSTITUTE, A STUDY OF THE BUSINESS OF
THE FEDERAL COURTS pt. 2, at 111 (1934) (60,515 civil cases filed in federal courts
in 1932) [hereinafter cited as ALI STUDY], with ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS, 1980 ANNUAL REPORT OF THE DIRECTOR 2, 4
(168,789 civil cases filed in federal courts in 1980) [hereinafter cited at 1983
DIRECTOR'S REPORT]. See generally Clark, Adjudication to Administration: A
Statistical Analysis of Federal District Courts in the Twentieth Century, 55 S. CAL. L.
REV. 65, 120, 143 (1981) (providing tables of cases processed in federal district courts in
1933-1946 and 1973-1980).
Today's federal docket is not only more voluminous, but also more comples. See
Chayes, Public Law Litigation, supra note 5, at 1284 (today, suits are more frequently
multiparty, multi-issue); Clark, supra, at 129-48 (same). But see Friedman, The Six
Million Dollar Man: Litigation and Rights Consciousness in Modern America, 39 MD. L.
REV. 661, 663 (1980) (questioning whether real litigation rates have increased).
n86 For a general discussion of the panoply of individual rights against agencies that
are recognized by the federal courts, see Stewart & Sunstein, Public Programs and
Private Rights, 95 HARV. L. REV. 1195 (1982).
n87 See Cramton, Crisis in Legal Services for the Poor, 20 VILL. L. REV. 521
(1981).
n88 See E. LARSON, FEDERAL COURT AWARDS OF ATTORNEY'S FEES
(1981).
n89 See. e.g., Hickman v. Taylor, 329 U.S. 495, 501 (1947) ("[C]ivil trials in the
federal courts no longer need be carried on in the dark.").
n90 See, e.g., COLUMBIA UNIVERSITY SCHOOL OF LAW PROJECT FOR
EFFECTIVE JUSTICE, FIELD SURVEY OF FEDERAL DISCOVERY (1965);
Developments in the Law -- Discovery, 74 HARV. L. REV. 940 (1961). For an example
of earlier concern about the problems of discovery practice, see Rosenberg, Sanctions to
23
Effectuate Pretrial Discovery, 58 COLUM. L. REV. 480 (1958).
n91 See Amendments to the Federal Rules of Civil Procedure, 85 F.R.D. 521, 523
(1980) (Powell, J., dissenting); Rosenberg & King, Curbing Discovery Abuse in Civil
Litigation: Enough is Enough, 1981 B.Y.U. L. REV. 579.
The empirical bases for the conclusion that the discovery system has been "abused"
are limited. The major studies of discovery are narrowly focused and rely upon either a
small number of data, see, e.g., J. EBERSOLE & B. BURKE, supra note 66, or reports of
attorneys and judges, see, e.g., Brazil, Views from the Front Lines: Observations by
Chicago Lawyers About the System of Civil Discovery, 1980 AM. B. FOUND.
RESEARCH J. 217. For criticism of the assumptions underlying the current movement
to limit discovery, see Friedenthal, A Divided Supreme Court Adopts Discovery
Amendments to the Federal Rules of Civil Procedure, 69 CALIF. L. REV. 806, 812
(1981); E.D. Elliot, Statement Before the Standing Committee on Rules of Practice and
Procedure (Oct. 16, 1981) (on file in Harvard Law School Library) (the complex nature
of contemporary litigation, not discovery, is the source of many problems; discovery
often enables attorneys to negotiate settlements).
n92 For a discussion of the growth of recordkeeping and its relationship to litigation,
see Fedders & Guttenplan, Document Retention and Destruction: Practical, Legal and
Ethical Considerations, 56 NOTRE DAME LAW. 5 (1980).
n93 See, e.g., Hurst, The Functions of Courts in the United States, 1950-1980, 15
LAW & SOC'Y REV. 401, 403-09 (1980-1981); Sarat, Understanding Trial Courts: A
Critique of Social Science Approaches, 61 JUDICATURE 318 (1978).
n94 "Delay" became a byword. See, e.g., D. NEUBAUER, M. LIPETZ, M. LUSKIN
& J. RYAN, MANAGING THE PACE OF JUSTICE: AN EVALUATION OF LEAA'S
COURT DELAY-REDUCTION PROGRAMS (1981) [hereinafter cited as D.
NEUBAUER]; L. SIPES, MANAGING TO REDUCE DELAY (1980); Court Delay:
Diagnosing the Problem, Testing New Treatments, 65 JUDICATURE 57 (1981); Levin,
Delay in Five Criminal Courts, 4 J. LEGAL STUD. 83 (1975).
n95 See, e.g., James, Crisis in the Courts, 51 JUDICATURA 283 (1968). The
proclamation of a crisis in the courts is not a recent development. See C. DICKENS,
BLEAK HOUSE ch. 1 (London 1853); H. SCOTT, supra note 50, at 145 (colonial New
York passed laws reducing the "[m]ultiplicity" of lawsuits, "[s]hortening" lawsuits, and
"[r]egulating the [p]ractice of [l]aw").
n96 See Navarro & Taylor, An Application of Systems Analysis to Aid in the
Efficient Administration of Justice, 51 JUDICATURE 47 (1967); Solomon, Reflections
on Wingspread II: Looking Back and Assessing the Future, 6 JUST. SYS. J. 165 (1981).
n97 See, e.g., Becker, Efficient Uses of Judicial Resources, 43 F.R.D. 421 (1967);
Proceedings of the Seminar on Practice and Procedure Under the Federal Rules of Civil
Procedure, 28 F.R.D. 37 (1960). Before the Federal Judicial Center was established, see
infra note 98, three mechanisms facilitated communications among judges about case
load problems. First, in 1922 Congress created the Conference of Senior Circuit Judges
to make policy for the district and circuit courts. This group was the forerunner of
today's Judicial Conference. Second, in 1939 Congress established the Administrative
24
Office of the United States Courts to implement the decisions of the Conference of Senior
Circuit Judges and to provide staff and information to judges. Finally, individual circuits
held their own conferences. See Oversight Hearing Before the Subcomm. on Courts,
Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary,
97th Cong., 1st Ses. 4-5 (1981). More recently, Congress created the Judicial Councils.
See Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, Pub. L.
No. 96-458, 94 Stat. 2035 (codified in scattered sections of 28 U.S.C. (Supp. IV 1980));
see also 28 U.S.C. § § 331-333 (1976 & Supp. IV 1980) (statutes providing for the
Judicial Conference, Judicial Councils, and Judicial Conferences of Circuits); Remington,
Circuit Council Reform: A Boat Hook for Judges and Court Administrators, 1981 B.Y.U.
L. REV. 695 (discussing judicial administration problems that led to 1980 Act). See
generally S. FLANDERS & J. McDERMOTT, OPERATION OF THE FEDERAL
JUDICIAL COUNCILS (1978) (recommending some changes in the operation of the
Judicial Councils).
n98 Act of Dec. 20, 1967, Pub. L. No. 90-219, 81 Stat. 664 (codified at 28 U.S.C. § §
620-629 (1976)); see Clark, The Federal Judicial Center, 53 JUDICATURE 99 (1969).
The FJC grew from a staff of 11 in the late 1960's to a staff of about 100 in 1979. In
1979 alone, about 5000 people participated in FJC workshops. Tamm & Reardon,
Warren E. Burger and the Administration of Justice, 1981 B.Y.U. L. REV 447, 511.
n99 E.g., PROCEEDINGS OF SEMINAR FOR NEWLY APPOINTED UNITED
STATES DISTRICT JUDGES (1976) [hereinafter cited as TRAINING SEMINAR].
District courts instituted their own seminars for new judges in 1961; the FJC began to
conduct seminars in 1967. Flanders, supra note 50, at 148.
n100 See 28 U.S.C. § 332(e)-(f) (1976). Chief Justice Burger described the origin of
the circuit executive program: "I took oath [of office] on the 23rd of June, 1969, and on
the morning of the 24th I met with experts in public administration, and we started the
program to try to provide court executives for the District and [Circuit] Courts...."
Burger, Address of Chief Justice Warren E. Burger Before the Fifth Circuit Judicial
Conference, 12 J. PUB. L. 271 (1972) (remarks of Apr. 27, 1972). The Institute for
Court Management began to train court administrators in 1970. Tamm & Reardon, supra
note 98, at 456-58. See generally J. McDERMOTT & S. FLANDERS, THE IMPACT
OF THE CIRCUIT EXECUTIVE ACT (1979) (reviewing the courts' experiences under
the Circuit Executive Act).
n101 See M. SOLOMON, CASEFLOW MANAGEMENT IN THE TRIAL COURT
8-10 (1973); Note, The Assignment of Cases to Federal District Court Judges, 27 STAN.
L. REV. 475 (1975).
n102 See P. DUBOIS, ADMINISTRATIVE STRUCTURES IN LARGE DISTRICT
COURTS (1981); Baar, ICM and Court Administration: The First Decade, 6 JUST. SYS.
J. 176 (1981).
n103 See M. SOLOMON, supra note 101, at 22-26. But see Cunningham, Some
Organizational Aspects of Calendar Management, 4 JUST. SYS. J. 233 (1978)
(consistent calendar system more important to successful case management than is any
particular type of system).
25
n104 See Nihan & Wheeler, Using Technology to Improve the Administration of
Justice in the Federal Courts, 1981 B.Y.U. L. REV. 659 (describing installation and
growth of Courtran I data collection system in many federal courts).
n105 As of 1979, 10 federal district courts required pretrial conferences early in the
litigation process. See Cohn, Federal Discovery: A Survey of Local Rules and Practices
in View of Proposed Changes to the Federal Rules, 60 MINN. L. REV. 253, 265-66
(1979).
n106 See Aldisert, supra note 18, at 248-52; Flanders, supra note 50, at 153-55;
Rubin, supra note 14, at 138.
n107 FED. R. CIV. P. 16 (Discussion Draft Sept. 1982). Draft rule 16(b) would
require the issuance of scheduling orders within 120 days of the date of the complaint
"except in categories exempted by the district court as inappropriate." According to the
Advisory Committee, "logical candidates" for exemption include "social security
disability matters, habeas corpus petitions, forfeitures, and reviews of certain
administrative actions." FED. R. CIV. P. 16(b) advisory committee note (Discussion
Draft Sept. 1982).
Other proposed amendments to the Federal Rules would also expand judges' powers.
Draft rule 26(b) would permit judges to limit the frequency and extent of discovery if the
information sought is "unreasonably cumulative or duplicative" or more readily available
from another source, if the party seeking discovery has already had "ample opportunity
by discovery... to obtain the information," or if discovery is "unduly burdensome or
expensive" in light of the particular facts of the litigation. FED. R. CIV. P. 26(b)
Discussion Draft Sept. 1982). Moreover, draft rule 26(g) would require attorneys to
certify that their discovery requests are reasonable. See FED. R. CIV. P. 26(g)
(Discussion Draft Sept. 1982). Judges could punish attorneys who invalidly certified
discovery requests by making the attorneys pay opposing parties' reasonable expenses
and attorneys' fees. Id. These new rules would supplement the existing rules empowering
judges to police discovery problems. Such existing rules include FED. R. CIV. P. 26(f)
(authorizing judges to hold discovery conferences) and FED. R. CIV. P. 37(g) (permitting
courts to sanction attorneys who do not "participate in good faith in the framing of a
discovery plan").
n108 FED. R. CIV. P. 16 (Discussion Draft Sept. 1982).
n109 See supra note 107.
n110 To accomplish this task, judges would have to read the parties' papers and
contact the lawyers to learn enough about each case to decide the pace at which to
proceed. My guess is that amended rule 16 would result in conferences in most cases
despite the Advisory Committee's disclaimer, see Letter from Walter R. Mansfield,
Chairman, Advisory Committee on Civil Rules, to Judges Edward T. Gignoux,
Chairman, Standing Committee on Rules of Practice and Procedure (Mar. 9, 1982)
[hereinafter cited as Mansfield Letter], reprinted in Judicial Conference Excerpt, supra
note 19, at 1, 3, that the rule does not require conferences. Cf. Renfrew, Discovery
Sanctions: A Judicial Perspective, 67 CALIF. L. REV. 264, 281 (1979) (suggesting that
judges hold "regular status conferences where the parties are required to explain and
26
defend their overall approach to the litigation").
n155 Managerial judging is, in part, court administration. For a general discussion of
court administration, see P. NEJELSKI & R. WHEELER, WINGSPREAD
CONFERENCE ON CONTEMPORARY AND FUTURE ISSUES IN THE FIELD OF
COURT MANAGEMENT (1979). For a more comprehensive discussion of
organizational theory and its implications, see K. ARROW, THE LIMITS OF
ORGANIZATION (1974).
n156 As ordinarily understood, utilitarianism "holds that the moral worth of an
action, practice, institution, or law is to be judged by its effect in promoting happiness -'the surplus of pleasure over pain' -- aggregated across all of the inhabitants... of
'society.'" R. POSNER, THE ECONOMICS OF JUSTICE 48-49 (1981) (citation
omitted).
n157 See Posner, An Economic Approach to Legal Procedure and Judicial
Administration, 2 J. LEGAL STUD. 399, 445-48 (1973); see also G-K Properties v.
Redevelopment Agency, 577 F.2d 645, 647 (9th Cir. 1978) (in an era of crowded
dockets, litigants who intentionally delay discovery deprive other litigants of an
opportunity to use the courts).
n158 See Note, The Emerging Deterrence Orientation in the Imposition of Discovery
Sanctions, 91 HARV. L. REV. 1033 (1978) (discussing cases that have criticized
attorneys' misbehavior). In Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980), the
Supreme Court held that a district judge had the power to charge attorneys for expenses
related to misbehavior during discovery. Cf. Antirust Procedural Improvements Act of
1980, Pub. L. No. 96-349, § 3, 94 Stat. 1154, 1156 (amending 28 U.S.C. § 1927 (Supp.
IV 1980) to provide that courts may charge "excess costs, expenses, and attorney's' fees"
to lawyers who "unreasonably and vexatiously" multiply litigation proceedings). In
Litton Sys., Inc. v. American Tel. & Tel. Co., 91 F.R.D. 574 (S.D.N.Y. 1981), victorious
antitrust plaintiffs were denied attorneys' fees, estimated at "well into the eight-figure
range," id. at 578, because of their attorneys' "gross negligence" and "intentional
misrepresentation" during discovery, id. at 575.
n159 The Administrative Office of the United States Courts estimated the fiscal 1982
budget for the federal judiciary at $ 710.5 million. See REPORTS OF THE
PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 74
(1981).
n160 I cannot emphasize enough that if for one moment our calendars slip from our
direct supervision and control, the result will be chaos....
... Only by maintaining an independent judiciary controlling its own calendars can
we hope to achieve the best results, qualitatively or quantitatively, in our endless search
for a more perfect justice under law.
Compbell, Calendar Control and Motions Practice: Judicial Responsibility for Calendar
Control, 28 F.R.D. 63, 65 (1960) (remarks of the Chief Judge of the Northern District of
Illinois); cf. AMERICAN COLLEGE OF TRIAL LAWYERS, RECOMMENDATIONS
ON MAJOR ISSUES AFFECTING COMPLEX LITIGATION 4-5 (1981)
27
(recommending judicial management in complex cases).
n161 See 1980 DIRECTOR'S REPORT, supra note 85. For the advances in recordkeeping, compare the 1980 Director's Report, id., with the ALI's 1934 study, ALI
STUDY, supra note 85. In 1934, the only available national data on federal courts -other than the ALI's study -- were the annual reports of the Attorney General. Id. at 19.
Before 1904, no nationwide information was kept about the number of civil cases filed in
federal court. See id. at 32. The ALI study itself gathered information for only 13
federal districts over a one-year period, and not all of these districts had records for all
cases, id. at 28-29.
The scope and quality of information on the federal courts have improved
substantially since the 1930's. For example, during the last 10 years, the Administrative
Office of the United States Courts began to publish Court Management Statistics, Juror
Utilization Statistics, and Reports on the Implementation of the Speedy Trial Act of 1974.
In addition, the Federal Judicial Center periodically publishes studies on discrete issues
of federal court management. See, e.g., S. FLANDERS, supra note 14.
n162 One benefit of this new information is that it has enabled court administrators to
weigh the relative burdens of different kinds of cases and to distribute complex cases
more equally among judges. See generally Doane, The Effect of Case Weights on
Perceived Court Workload, 2 JUST. SYS. J. 270 (1977) (providing a model for
calculating workload that assigns various "case weights" to different types of cases).
n163 One such suggestion is to minimize the number of written opinions. See, e.g.,
P. CONNOLLY & P. LOMBARD, supra note 121, at 55 (noting faster decision of
motions when no opinions written); S. FLANDERS, supra note 14, at ix-x (in "fast and/or
highly productive courts," "relatively few written opinions are prepared for publication").
n164 The Judicial Conference's requests to Congress for more judgeships and
administrative positions is based, in part, upon weighted case studies. See Additional
Judicial Positions: Hearing Before the Subcomm. on Courts of the Senate Comm. on the
Judiciary, 97th Cong., 1st Sess. (1981) [hereinafter cited as Additional Judgeship
Hearings].
n165 See Brazil, supra note 14, at 892; Flanders, supra note 50, at 149-50; Peckham,
supra note 14, at 770-79; Tamm & Reardon, supra note 98, at 466-67.
n166 See, e.g., Hufstedler, New Blocks for Old Pyramids: Reshaping the Judicial
System, 44 S. CAL. L. REV. 901 (1971); Tate, Relieving the Appellate Court Crisis:
Containing the Law Explosion, 56 JUDICATURE 228 (1973). For a more recent
examination of these problems, see Appellate Courts and Judicial Administration, 6
JUST. SYS. J. 275 (1981).
n167 The Ninth Circuit reported a backlog of 4618 appeals in 1980. The average
time from filing an appeal to a decision was 26.9 months. See Additional Judgeship
Hearings, supra note 164, at 100 (statement of James R. Browning, Chief Judge, United
States Court of Appeals, Ninth Circuit). In the circuit courts, the nationwide median time
from filing the complete record to final disposition was 8.9 months. See 1980
DIRECTOR'S REPORT, supra 85, at 51.
n168 See, e.g., R. STERN, supra note 144, ch. 6.
28
n169 See Reynolds & Richmond, Limited Publication in the Fourth and Sixth
Circuits, 1979 DUKE L.J. 807 (experience of the Fourth and Sixth Circuits with plans
that effectively reduce the number of written opinions); E. Neisser, Memorandum to
Lawyer Representatives to the Ninth Circuit Judicial Conference (Nov. 12, 1981) (on file
in Harvard Law School Library) (detailing new procedures for assignment of judges to
oral argument, decisions without argument, and publication of fewer case dispositions).
n170 See Additional Judgeship Hearings, supra note 164, at 60-63 (statement of
Wilfred Feinberg, Chief Judge, United States Court of Appeals, Second Circuit).
n171 Id. at 62.
n172 Some appellate courts have also reduced the number of oral arguments, see,
e.g., 3D CIR. R. 12(6)(a), and written opinions, see, e.g., Reynolds & Richman, An
Evaluation of Limited Publication in the United States Courts of Appeals: The Price of
Reform, 48 U. CHI. L. REV. 573 (1981).
n173 See 1980 DIRECTOR'S REPORT, supra note 85, at 81; cf. Rosewell v. LaSalle
Nat'l Bank, 450 U.S. 503 (1981) (two-year state court proceeding not too long to be
characterized as "plain, speedy, and efficient").
n174 See, e.g., J. ADLER, W. FELSTINER, D. HENSLER & M. PETERSON, THE
PACE OF LITIGATION: CONFERENCE PROCEEDINGS (1982).
n175 One tool that the Administrative Office of the United States Courts has used
since 1975 to compile information is a form called the "Civil Cover Sheet." See
ANNUAL REPORT OF THE DIRECTOR, PROCEEDINGS OF THE JUDICIAL
CONFERENCE OF THE UNITED STATES 50 (1974). Plaintiffs' attorneys submit the
form when they file complaints. In 1982, the form required attorneys to provide a brief
description of the cause of action and then to check one -- and only one -- of the form's
82 categories to describe the "nature of the suit." Clerks check the accuracy of the form
but do not verify the attorney's description of the suit by comparing that description with
the complaint.
The information gathered from these forms is unreable for several reasons. First,
attorneys have not been trained in coding; thus, different attorneys may categorize the
same case differently. Second, a lawsuit may include both tort and contract claims, or be
filed under both federal question and diversity jurisdiction, yet the form allows attorneys
to classify each case in only one category. Finally, the number of categories has grown
over the years from 69 to 82. In an informal check of cases filed in one district court in
1980, I found that attorneys had used 1975, 1977, and 1979 cover sheets as well as the
then-new 1980 forms.
For discussions of difficulties in interpreting the statistics provided by the
Administrative Office, see Hurst, supra note 93, at 407-08; see also S. FLANDERS,
supra note 14, at 71-76 (measures of court work load and productivity confusing and
difficult to assess); Friedman, supra note 85, at 662 ("Judicial statistics, until now, have
been absolutely wretched; things have improved a bit in recent years, but there is still a
long way to go." (citation omitted)). For a discussion of the even more difficult problem
of interpreting state court statistics, see NATIONAL CENTER FOR STATE COURTS,
STATE COURT CASELOAD STATISTICS: ANNUAL REPORT, 1975, at 10, 39
29
(1979). For an example of a researcher's problems in understanding the import of the
data collected, see Grossman, Who Uses the Courts?, supra note 117, at 111-14.
n176 See S. FLANDERS, supra note 14, at 19.
n177 See, e.g., Brazil, supra note 91, at 221 (noting limited accuracy of partisans'
reports, as gathered through interviews, of adversaries' behavior).
n178 In a "controlled" experiment, researchers study the effect of a variable by
comparing at least two situations that are virtually identical except that, in one, the
variable under consideration is held constant and, in the second, the variable is
manipulated. See A. EDWARDS, EXPERIMENTAL DESIGN IN PSYCHOLOGICAL
RESEARCH ch. 2 (3d ed. 1968). Some researchers have tried to emulate this approach
in collecting data on courts. See M. ROSENBERG, supra note 18; L. SIPES, supra note
94. For sample research designs, see Lind, Shapard & Cecil, Methods for Empirical
Evaluation of Innovations in the Justice System, in EXPERIMENTATION IN THE
LAW: REPORT OF THE FEDERAL JUDICIAL CENTER ADIVISORY COMMITTEE
ON EXPERIMENTATION IN THE LAW app. B (1981).
The literature on the causes of and cures for delay reveals the difficulties of analyzing
court data. Several researchers believe the data demonstrate that "local legal culture" is
the pivotal reason for lengthy intervals between the filing and disposition of cases.
Others, however, believe that such conclusions are premature. Compare Church, Civil
Case Delay in State Trial Courts, 4 JUST. SYS. J. 166, 181 (1978) (both delay and
backlog are the result of "local legal culture"), and Sherwood & Clark, Toward an
Understanding of "Local Legal Culture," 6 JUST. SYS. J. 200, 212-13 (1981) (responses
to questionnaire at Detroit Civil Case Delay Symposium supported the notion of "cultural
bias" as a cause of delay), with Grossman, Measuring the Pace, supra note 117, at 112
("local legal culture" is more a convenient restatement than an explanation of the
problem). As one commentator concludes, "[w]riting on court delay is voluminous, but
much of it might simply be termed inspirational." Luskin, Building a Theory of Case
Processing Time, 62 JUDICATURE 115, 117 (1978).
n179 See, e.g., Peckham, supra note 14, passim (relying on S. FLANDERS, supra
note 14); Rubin, supra note 14, at 138.
n180 See L. SIPES, supra note 94 (settlement rates increased in some courts as a
result of case management, but not necessarily as a result of judges' settlement efforts);
Rubin, supra note 14, at 138 (author's intuition, influenced by his many years as an
attorney and judge, suggests that judicial control of cases produces earlier and fairer
settlements, focuses the trials in remaining cases, and improves the quality of
adjudication); Title, The Lawyer's Role in Settlement Conferences, 67 A.B.A.J. 592
(1981) (in one settlement program, 70% of cases that allegedly would have been tried
were settled).
n181 See Flanders, supra note 50, at 161 (study of six federal district courts revealed
that the court "with the strongest and most vigorous settlement role has the fewest civil
terminations per judgeship per year"); see also S. FLANDERS, supra note 14, at 37 (data
suggest that "a large expenditure of judicial time [attempting to produce settlements] is
fruitless"); cf. M. ROSENBERG, supra note 18, at 47 (New Jersey system of compulsory
30
pretrials "unmistakably" did not achieve a higher proportion of settlements than did
system in which attorneys could decide whether cases would be pretried); Church, supra
note 178, at 176 (study of state courts found that "[t]he most settlement-intensive courts
are the slowest courts"). But see Kritzer, supra note 117, at 35-36 (noting evidence that
settlement activities speed case disposition).
n182 Commentators and rulemakers rely heavily on Flanders' work for the
proposition that pretrial management techniques actually promote efficiency. Perhaps the
most prominent example of this reliance is found in the Advisory Committee's notes to
draft rule 16:
Empirical studies reveal that when a trial judge intervenes personally at an early stage
to assume judicial control over a case to schedule dates for completion by the parties of
the principal pretrial steps, the case is disposed of by settlement or trial more efficiently
and with less cost and delay than when the parties are left to their own devices.
FED. R. CIV. P. 16 advisory committee note 13 (Discussion Draft Sept. 1982) (citing S.
FLANDERS, supra note 14, at 17). Flanders, however, measured neither parties' costs
nor court management costs.
Some commentators also rely on Flanders' data to assert that case management does
not "necessarily" diminish quality. Peckham, supra note 14, at 783; see also Brazil, supra
note 14, at 892 (citing Peckham and others for proposition that judicial management does
not harm quality). But Flanders provides no measurement of quality; instead he assumes
a "close positive relationship between speed and quality." S. FLANDERS, supra note 14,
at 69. He concedes that "no staff member on this project could be considered qualified to
attempt a comprehensive evaluation of the quality of justice rendered in the several courts
we observed. That evaluation is a task well left to others...." Id. at 68. For criticism of
the methods used by Flanders and others, see Luskin, supra note 178, at 117-26. For
research attempting to review the effect of court efficiency programs on quality, see D.
NEUBAUER, supra note 94, at 177-80, 234 (finding no effect on guilty plea rates or
sentences).
n183 See, e.g., FED. R. CIV. P. 16 advisory committee note 16 (Discussion Draft
Sept. 1982); Pollack, Pretrial Conferences, supra note 114 (advocating increased
management to reduce "unprofitable expenditures of time, effort, and money").
n184 See, e.g., D. HENSLER, A. LIPSON & E. ROLPH, JUDICIAL
ARBITRATION IN CALIFORNIA: THE FIRST YEAR 62-69 (1981) (unclear that
California's mandatory arbitration program conserves judicial resources) [hereinafter
cited as D. HENSLER]; M. ROSENBERG, supra note 18, at 28 ("At the very least, it
seems clear that the efficiency of the court was reduced rather than enhanced by requiring
as a compulsory matter that each case go through a pretrial conference....").
n185 See Brazil, Special Masters in the Pretrial Development of Big Cases: Potential
and Problems, 1982 AM. B. FOUND. RESEARCH J. 287, 305-08.
n186 [I]t usually is impossible to prove that a party is deliberately holding back
material that he is obligated to disclose. A party that is determined to abuse the judicial
process can generally do so successfully.
31
... [S]ome kinds of abuse result more often from good faith errors in judgment than
from intentional, reckless, or negligent conduct.
Renfrew, supra note 110, at 279-80.
n187 Some of the costs of efficiency at the appellate level include the demise of oral
argument, see Wasby, Oral Argument in the Ninth Circuit: The View from the Bench and
Bar, 11 GOLDEN GATE L. REV. 21, 63-71 (1981), the reduction in published opinions,
see Reynolds & Richman, supra note 172, at 581, and a diversion of resources from the
criminal to the civil appeals docket, see Davies, Gresham's Law Revisited: Expedited
Processing Techniques and the Allocation of Appellate Resources, 6 JUST. SYS. J. 372,
375-76 (1981). See generally Hoffman, Bureaucratic Spectre: Newest Challenge to the
Courts, 66 JUDICATURE 61 (1982) (expressing concern about increasingly common
delegation of adjudicatory tasks to staff); McCree, Bureaucratic Justice: An Early
Warning, 129 U. PA. L. REV. 777 (1981) (same).
n188 J. KAKALIK & A. ROBYN, COSTS OF THE CIVIL JUSTICE SYSTEM:
COURT EXPENDITURES FOR PROCESSING TORT CASES 64 (1982) (annual costs,
including salaries, support staff, and other resources, of each federal district judge
estimated at $ 752,000).
n189 See S. FLANDERS, supra note 14, at 60-61.
n190 FED. R. CIV. P. 16(b) (Discussion Draft Sept. 1982); Mansfield Letter, supra
note 110 (transmitting Advisory Committee's proposed changes of rule 16 and other
federal rules; clarifying that proposed rule 16 requires pretrial orders, not conferences;
suggesting that personal conferences will not always be necessary to develop orders),
reprinted in Judicial Conference Excerpt, supra note 19, at 3.
n191 Although we know how much the public spends to maintain and run federal
courts, we do not know which management techniques will save money. Cf. D.
HENSLER, supra note 184, at 62-69 (researchers investigating California's experiment
with judicial arbitration could not, based on limited data available, conclude that
arbitration saved time or resources). For a comparison of costs in several federal and
state courts, see J. KAKALIK & A. ROBYN, supra note 188.
n192 See, e.g., Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (welfare official who
was involved in case should not have participated in decision to terminate benefits). For
an analysis of the Supreme Court's approach to the level of process required, see
Mashaw, The Supreme Court's Due Process Calculus for Adminstrative Adjudication in
Mathews v. Eldridge: Three Factors in Search of a Theory of Value, 44 U. CHI. L. REV.
28 (1976).
n193 For two prominent examples of cases in which litigants attempted
unsuccessfully to remove judges, see United States v. IBM, 475 F. Supp. 1372 (S.D.N.Y.
1979); Bradley v. Milliken, 426 F. Supp. 929 (E.D. Mich. 1977), aff'd, 620 F.2d 1143
(6th Cir.), cert. denied, 449 U.S. 870 (1980).
n196 H. DAVIDOFF, A WORLD TREASURY OF PROVERBS 102 (2d ed. 1961)
("A man who is his own doctor has a fool for his patient."); id. at 236 ("He that is his own
lawyer has a fool for his client.").
32
n197 The relationship between decisionmakers' prior knowledge about or
involvement in controversies and their formation of bias is very complex; we are only
beginning to understand the bases for the formation of opinions. See, e.g., R. NISBETT
& L. ROSS. HUMAN INFERENCE (1980). For present purposes, I assume the
American legal rule, which generally disqualifies judges with extrajudicial knowledge
about either the dispute or the disputants. Sorting out the ambivalence displayed by the
exceptions to these rules is a subject for future articles.
n198 Judge John Butzner, former Chairman of the Judicial Conference's
Subcommittee on Judicial Statistics, testified before Congress that, in evaluating
judgeship needs, his subcommittee assumed that judges could "terminate 400 cases per
year." Additional Judgeship Hearings, supra note 164, at 49 (testimony of John Butzner,
Judge, United States Court of Appeals, Fourth Circuit). What effect does such an
expectation have on trial judges?
Reported opinions reveal some evidence of judges' improperly pressing litigants to
dispose of cases. See, e.g., Beary v. City of Rye, 601 F.2d 62 (2d Cir. 1979) (trial judge
dismissed lawsuit after denying plaintiff's request for brief continuance; reversed on
ground that judge elevated management interests over considerations of fairness).
n199 Compare Lassiter v. Department of Social Servs; 452 U.S. 18, 31 (1981) (no
absolute right to attorney at child custody termination hearing), and Greenholtz v.
Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 15 (1979) (parole
board need not specify particular "evidence" on which decision to deny release is based),
and Mathews v. Eldridge, 424 U.S. 319 (1976) (no right to evidentiary hearing before
disability benefits terminated), with Morrissey v. Brewer, 408 U.S. 471 (1972) (right to
hearing at parole revocation), and Goldberg v. Kelly, 397 U.S. 254 (1970) (right to
evidentiary hearing before welfare benefits terminated).
n200 See, e.g., Ward v. Village of Monroeville, 409 U.S. 57 (1972); Goldberg v.
Kelly, 397 U.S. 254, 271 (1970); In re Murchison, 349 U.S. 133 (1955).
n201 See Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972) (mayor not
disinterested trier of traffic offense in court whose collections provided substantial share
of village funds). The rules governing the impartiality of administrators are not so
exacting. See Marshall v. Jerrico, Inc., 446 U.S. 238, 251-52 (1980) (revenue from child
labor fines may be used by agency responsible for assessing penalties); Withrow v.
Larkin, 421 U.S. 35, 58 (1975) (state examining board may both investigate and
adjudicate merits of claims).
n202 Two statutes, 28 U.S.C. § 144 (1976) and 28 U.S.C. § 455 (1976 & Supp. IV
1980), are the basis for judicial disqualification. Under English common law, judges
were disqualified if they had a property interest in a proceeding; other grounds, such as
relationship with the parties, did not always result in disqualification. Moreover, judges
had a "duty to sit," which resulted in narrow interpretations of when disqualification was
proper. See Frank, Disqualification of Judges, 56 YALE L.J. 605, 609-12 (1947); Note,
Disqualification of Judges for Prejudice or Bias -- Common Law Evolution, Current
Status, and the Oregon Experience, 48 OR. L. REV. 311, 315-32 (1969).
n203 In 1974, Congress amended 28 U.S.C. § 455 to provide explicit standards for
33
disqualification whenever a judge's impartiality might "reasonably be questioned." Act of
Dec. 5, 1974, Pub. L. No. 93-512, § 1, 88 Stat. 1609, 1609. The purpose of the
amendments was to increase public confidence in judicial impartiality by having judges
disqualify themselves in cases in which conflict of interest is a close question. See H.R.
REP. No. 1453, 93d Cong., 2d Sess. 5-7, reprinted in 1974 U.S. CODE CONG. & AD.
NEWS 6351, 6352-53; see also Judicial Councils Reform and Judicial Conduct and
Disability Act of 1980, Pub. L. No. 96-458, 94 Stat. 2035 (amending 28 U.S.C. § 372 to
provide a mechanism for persons to complain about judicial disabilities, and to empower
the Judicial Council to investigate the charges and act on them). For an examination of
the amendments to § 455, see Comment, Disqualification of Federal Judges for Bias or
Prejudice, 46 U. CHI. L. REV. 236 (1978); for a discussion of the Judicial Conduct and
Disability Act, see Neisser, The New Federal Judicial Discipline Act: Some Questions
Congress Didn't Answer, 65 JUDICATURE 143 (1981).
n204 See 28 U.S.C. § 455(b)(4), (d)(4) (1976).
n205 Jurors are not assumed to be so agile. See e.g., Leonard v. United States, 378
U.S. 544 (1964) (per curiam) (government concedes error in case in which jury panel
heard announcement of guilty verdict in related prior case); Government of the Virgin
Islands v. Parrott, 551 F.2d 553, 554 (3d Cir. 1977) ("[D]efendant had a constitutional
right not to be tried before jurors who had sat on the previous panel....").
n206 See 28 U.S.C. § 2255 (1976) (postconviction relief for prisoners convicted in
federal courts). Before 1977, although § 2255 did not specify that the action be heard by
the same judge who presided at trial, such was the practice in most circuits. see, e.g.,
United States v. Smith, 337 F.2d 49, 53-54 (2d Cir 1964) (citing cases for the proposition
that § 2255 authorizes the sentencing judge to entertain and decide motions filed under
that provision); Carvell v. United States, 173 F.2d 348, 348 (4th Cir. 1949) (per curiam)
(judge's prior knowledge made it "highly desirable" that he pass on the § 2255 issue).
But see Halliday v. United States, 380 F.2d 270 (1st Cir. 1967) (a judge other than the
trial judge should preside at § 2255 hearings when voluntariness of guilty plea is in
question).
The Rules Governing Section 2255 Proceedings for the United States District Courts,
28 U.S.C. § 2255 (1976 & Supp. IV 1980), became effective in 1977; rule 4(a) provides
that § 2255 motions be assigned to the judge "who presided at the movant's trial and
sentenced him." Id. Rule 4(a) (1976). The theory behind this rule is that the judge who
presided at trial has information that should be useful in deciding the motion. In a sense,
the judge is a silent witness who is never cross-examined. See, e.g., Halliday, 380 F.2d at
273 (arguing that it would be preferable to call judges as witnesses in § 2255
proceedings than to allow them to be triers of fact determining their own credibility); cf.
Withrow v. Larkin, 421 U.S. 35, 58 (1975) (permissible for state examining board both to
investigate and to adjudicate merits of claims).
n207 Cf. United States v. Cepeda Penes, 577 F.2d 754, 758 (1st Cir. 1978) ("[T]he
judicial system could not function if judges could dean but once in their lifetime with a
given defendant, or had to withdraw from a case whenever they had 'presided in a related
or companion case or in a separate trial in the same case.'" (emphasis omitted)) (quoting
United States v. Cowden, 545 F.2d 257, 266 (ist Cir. 1976), cert. denied, 430 U.S. 909
34
(1977)). For a general discussion of disqualification for prior involvement in the case, see
Ratner, Disqualification of Judges for Prior Judicial Actions, 3 How. L.J. 228 (1957).
n208 I have derived the term "repeat adjudicators" from Galanter, Why the "Haves"
Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV.
95 (1974) (discussing "repeat players" and "repeat lawyers").
n209 Professor Eisenberg argues that the conventional perception that the world of
negotiation is norm free is mistaken because negotiation is limited by rules, principles,
and precedents. See Eisenberg, supra note 17. I believe, however, that the norms that
operate in most negotiations are absent when judges sit at the bargaining table. Unlike
most parties to negotiations, judges possess the ability to compel the outcome of the
"negotiations" should talks break down.
n210 Cf. Fuller, supra note 138, at 44 ("An adversary presentation seems the only
effective means for combating... [the] natural human tendency to judge too swiftly in
terms of the familiar that which is not yet fully known.").
n211 See Packer, Two Models of the Criminal Process, 113 U. PA. L. REV. 1 (1964)
(describing and analyzing the values underlying two models of the criminal process -crime control and due process).
n212 This statement would not hold true, of course, if we changed our imagery to
reflect our new interest in efficient management. See Daube, supra note 40, at 129
("Receltly at Cambridge a statistical laboratory has for the first time been established.
Something of this kind is perhaps destined to become the symbol of modern justice in the
place of a simple pair of scales.").
n213 These speculations are based on my observations of judges and attorneys
engaging in ex parte communication, caucusing in back rooms, emerging with offers of
deals, then resubmerging for further negotiations. To my knowledge, however, no
systematic research has been done on how litigants and the public perceive these informal
procedures. Experimental designs have considered parties' preferences between
adversarial and inquisitorial approaches but have not specifically addressed this issue.
See Walker, Lind & Thibaut, The Relation Between Procedural and Distributive Justice,
65 VA. L. REV. 1401 (1979) (suggesting that empirical work demonstrates that parties
prefer maximum control over their own lawsuits). But cf. Damaska, Presentation of
Evidence and Factfinding Precision, 123 U. PA. L. REV. 1083 (1975) (criticizing
methodology used by Walker, Lind, and Thibaut in an earlier study).
n214 For examples of references to such values, see Rosenberg, Devising Procedures
that Are Civil to Promote Justice that Is Civilized, 69 MICH. L. REV. 797 (1971); Ryan,
Lipetz, Lustin & Neubauer, Analyzing Court Delay-Reduction Programs: Why Do some
Succeed?, 65 JUDICATURE 58, 68-69 (1981).
Other goals of procedural justice are efficacy and dignity. See Michelman, The
Supreme Court and Litigation Access Fees: The Right to Protect One's Rights (pt. 1),
1973 DUKE L.J. 1153. See generally DUE PROCESS (J. Pennock & J. Chapman eds.
1977) (collecting articles discussing the concept of due process and its relationship to
moral and rational theories).
n215 See, e.g., Flanders, supra note 50, at 150-55 (asking primarily how fast
35
disposition should be without asking why speed is desirable). But cf. Cohn, supra note
105, at 268 (although expeditious discovery should be encouraged, "[o]ne cannot say...
that a prolonged discovery period is bad"). Compare Flanders' orientation with that of
Wyzanski, A Trial Judge's Freedom and Responsibility, 65 HARV. L. REV. 1281 (1952),
which emphasizes the importance of subtle norms and adjudicators' integrity in limiting
trial judges' discretion.
n216 See Additional Judgeship Hearings, supra note 164, at 49, 55, 63 (statements of
chief judges).
n217 Cf. In re Jensen, 24 Cal. 3d 72, 593 P.2d 200, 154 Cal. Rptr. 503 (1978) (state
judge publicy censured for failure to decide cases within 90 days of submission); In re
Carstensen, 316 N.W.2d 889 (Iowa 1982) (state judge suspended without pay for
persistently disregarding rule requiring monthly reports of matters under advisement for
more than 60 days); Additional Judgeship Hearings, supra note 164, at 55 (statement of
Raymond Pettine, Chief Judge, United States District Court, District of Rhode Island)
(reporting that District of Rhode Island stood "very high on a national average. We are
12th in standing on a simple caseload per judge, 13th on weighted filings, and 18th on
trials completed.").
I am aware of no rigorous empirical work that examines the effect of managerial tasks
on judges' attitudes toward adjudication or on their ability to maintain neutrality. Some
impressionistic evaluations have been done. See, e.g., Neubauer, Judicial Role and Case
Management, 4 JUST. SYS. J. 223 (1978) (interviewing unrepresentative sample of
federal judges as a "preliminary" review of their attitudes toward managerial tasks).
n218 For example, in Beary v. City of Rye, 601 F. 2d 62 (2d Cir. 1979), the circuit
court held that the trial court, by requiring plaintiff to rest after one day of trial because of
failure to comply with a pretrial order, and erroneously permitted "its zeal for clearing its
calendar to overcome the right of a party to a full and fair trial on the merits." Id. at 63.
n219 See Fuller, supra note 13, at 387.
n273 See, e.g., W. BROWN, FEDERAL RULEMAKING PROBLEMS AND
POSSIBILITIES ch. 4 (1981); Schwartz, supra note 13, at 460-61; Hazard, Undemocratic
Legislation (Book Review), 87 YALE L.J. 1284, 1294 (1978) (reviewing J.
WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURES (1977)).
n274 See U.S. CONST. art. I, § 8, cl. 9; id. art. III, § 1.
n275 Ours is an adversary system of justice.... In our system lawyers worry about the
whereabouts of witnesses. The court does not. Lawyers worry about proof. The court
does not.... [The challenged local court rule] subordinates the role of the lawyer to that of
the administering magistrate, reducing counsel to the role of clerical assistants....
McCargo v. Hedrick, 545 F.2d 393, 401 (4th Cir. 1976) (striking down local court rules
requiring cumbersome pretrial procedure).
The demarcation between inquisitorial and adversarial proceedings appears to be
blurring. See Merryman, On the Conversion (and Divergence) of the Civil Law and the
Common Law, 17 STAN. J. INT'L L. 387 (1981); cf. Goldstein, Reflections on Two
Models: Inquisitorial Themes in American Criminal Procedure, 26 STAN. L. REV. 1009
(1974) (discussing inquisitorial elements of criminal procedure model). For a discussion
36
of a new entrepreneurialism in trial courts, see Galanter, Palen & Thomas, The Crusading
Judge: Judicial Activism in Trial Courts, 52 S. CAL. L. REV. 699 (1979).
37
Judicature
March/April, 2000
Viewpoint
LESSONS FOR JUDGES FROM THE CIVIL JUSTICE REFORM ACT
John Burritt McArthur [FNa1]
Copyright © 2000 American Judicature Society; John Burritt McArthur
Studying the problems turned up by the CJRA experiment can help get civil justice
reform back on track.
Like spilt milk and missed military charges, the Civil Justice Reform Act may seem a
poor candidate for continued debate. RAND's summary of the results came out two years
ago, the same year that the Judicial Conference made its final report to Congress. Yet
what was right, and wrong, in that experiment continues to cast a dark shadow across
civil justice reform. The U.S. Supreme Court approved new discovery amendments on
April 17, 2000. Their emphasis on adding yet more substantive limits to discovery and
their omission of time limits betray the same defects as the CJRA. Thus clear thinking
about what really went wrong in the CJRA is an important part of getting back on track
for the future.
This essay on the CJRA's shortcomings is addressed to judges because it is vital for
judges to grapple openly and forthrightly with the problems turned up by the CJRA
experiment. When it comes to the balance between uniform rules and court-by-court
flexibility, the judicial response to the CJRA showed that many federal judges have a
blind spot. From the Act's earliest incarnation, federal judges saw the bill as a threat to
their existing powers. Instead of seriously considering whether such limits might lower
costs and times to trial, they turned the CJRA into just another battle to preserve the
status quo.
Judicial objections to the CJRA, embodied in the Judicial Conference's formal positions,
rested on predictable grounds. One was local culture--that the determinants of case
processing vary by local factors, so rules must leave all key management decisions to
local discretion. Another was that judges are uniquely qualified to know how to run
courts. Then there was the reading that the Rules Enabling Act ceded Congress's
rulemaking power to the courts. Obscured in all this, of course, were the merits: can
certain uniform rules help the courts?
Those with a bias for local discretion will read the CJRA experience as confirming that
38
time-based rules cannot work. Yet it would be a tragedy to let a test so derailed by
judicial opposition define the future of uniform time reforms.
The CJRA failed because it was too deferential to local courts. First, the Judicial
Conference fought the initial bills until Judiciary Committee chair Senator Joseph Biden
and Judiciary Committee staff dropped all mandatory time requirements. Second, after
Congress left implementation to judicial discretion, judges used the new measures so
rarely that insignificant results were all but guaranteed.
The defeat of uniform rules
The CJRA was rooted in the work of a 1989 Brookings Task Force, which
recommended a national experiment with case tracks and time limits. Five of the Task
Force's 12 procedural recommendations, the core of the proposals, involved time limits:
case tracks, firm trial dates, discovery time guidelines, motion deadlines, and limits on
the power to grant exceptions to these rules.
The Task Force found that "the time has come for all federal district courts to channel
cases . . . ." Districts still were to set exact deadlines and to decide how many tracks to
use, but each district "must implementtwo interrelated procedures: establishing early,
firm trial dates, and imposing time limits on the discovery process, . . . with related limits
on the resolution of motions."
Brookings did leave room for local variation via district-level "planning groups." The
planning groups were to ensure wide participation, which supposedly would maximize
the chance for success, and generate a "much-needed dialogue" on the litigation process.
They were not, however, to subvert the new standards.
The first bill, S. 2027, faithfully reflected Brookings' recommendations. In prefatory
findings of fact, it announced that differential case management (case tracking) "now is
warranted on a regularized and formalized basis." Tracks required 'early, firm' trial dates
and time limits for discovery and motions. Each district was to have a plan that "shall
include" tracks with "distinct and explicit rules, procedures, and timeframes for the
completion of discovery and trial."
Local planning was to occur "within certain well-defined and uniformly applied
parameters." The drafters contrasted the new rules with the lax application of Rule 16; a
"broader" requirement than Rule 16 was needed to achieve the goal of "early, firm dates
and other case event deadlines."
Though in retrospect Brookings *223 and Senator Biden may have sown the seeds of
failure by failing to propose specific tracks and deadlines--not to mention their mistake of
allowing local planning groups into a bill that did not include uniform deadlines--S. 2027
at least imposed a specific national reform. It would have imprinted a few basic lifecycles
on all federal cases.
39
The Judicial Conference voted unanimously to oppose S. 2027 and issued its own 14point program. Its program had none of S. 2027's mandatory requirements. It did not
require tracks, firm trial dates, or discovery deadlines. Nor, while it recommended
advisory groups, did it contain any deadline for them to act.
The Conference created a special lobbying committee that met often with Judiciary
Committee staff. As a result, S. 2027's successor, S. 2648, kept only one of S. 2027's 18
findings on time limits. The requirement of specific tracks had dissolved into the mush of
differential treatment "that tailors the level of individualized and case specific
management to such criteria as case complexity, the amount of time reasonably needed . .
. and the judicial and other resources required . . . ." In other words, a discretionary
standard that would let every judge do just what he or she did before the CJRA. S. 2027's
presumptive time limits and "time certain" for trial were watered down to a discovery
schedule for certain complex cases, with the schedule itself being whatever "a district
court may set."
S. 2648 also incorporated the demonstration court project from the Conference's 14point program. And it responded to long-standing complaints about short staffing by
establishing 11 new appeals court judges and 41 district judges.
Yet the Conference adamantly opposed S. 2648, too. The Conference was against the
few "mandatory" provisions that survived. It wanted each district to "assess its own needs
and to tailor appropriate responses to them," and it wanted to gut uniform time limits. For
instance, on trial dates, the Conference would accept only "inspirational" trial dates, dates
that "can be a goal."
Congress dutifully replaced S. 2648 with a third bill. The CJRA would retain trial dates
and discovery time controls, but in name only. Now these were just "principles" that
courts had to "consider," but not necessarily "include," in their plans. The Act did not
mandate any time limits.
One indicator of the destruction of the CJRA's original vision is the advisory group
process. In their first appearance, these groups were to ease uniform standards into local
practice. Thus it made sense for every district to get its own planning group. By the time
of S. 2648, however, advisory groups had acquired the task of each "determin[ing] the
condition of the civil and criminal docket," "identify[ing] trends," and "identify[ing] the
principal causes of cost and delay in civil litigation."As many commentors pointed out, it
would be hard to imagine an odder way of conducting social science research. [FN1] As
Steven Flanders has observed, "Congress imposed a recipe for confusion. [FN2] There
was no justification for having 94 small groups, with limited resources, essentially repeat
each other's work (with no provision for pooling information as they went about the job).
If Congress wanted a wide ranging investigation, it should have designed a proper
national experiment.
This is not to deny that there are a number of individual questions, for instance, an
40
excess of drug cases, unusual vacancies, or disproportionate docket growth, that should
be addressed at the district level. But the whole point of the Brookings Report and the
CJRA was to identify and test changes that might improve our courts across the board by
systematic rule changes.
The waste of decentralized planning groups is unfortunate in another way. The CJRA
virtually guaranteed that judges and advisory groups would spend countless hours in an
essentially unmanageable task. Once they had invested all this time in such a flawed
experiment, it would become even harder to convince them that the underlying proposals
make sense.
What RAND found
The results of the Act were catalogued by the RAND Corporation. [FN3] The first
major CJRA reform was to have been differential case management (DCM), or case
tracking; "schedules that are at least partially predetermined by the track assignment." In
the absence of uniform requirements on the number or duration of tracks, courts easily
evaded DCM. Nine out of ten pilot districts tracked few or no cases. Four of the ten
districts simply left "individual management" in place. Five of the six other pilot districts
tracked only a handful of cases, with some even assigning all cases to a "standard" track
where they were "managed individually" (i.e., not tracked). With careful understatement,
RAND concluded that "there was little actual 'differential' tracking of general civil cases
in most districts that adopted a track model in their CJRA plan."
Only one district (the Eastern District of Pennsylvania) assigned more than 2 percent of
its cases to a complex track. Unfortunately, that district adopted so many other reforms
that RAND could not separate their effects from tracking. As a result, after this multiyear, resource-intensive experiment, "[w]e have no basis for evaluating how the track
method of DCM affected time, cost, satisfaction, and views of fairness."
The same problem prevented *273 RAND from evaluating the third CJRA principle,
discovery management for complex and other "appropriate" cases. The principle "lacked
an implementation sufficiently consistent and well documented to permit an evaluation."
Judges set discovery cut-offs individually and the "CJRA had little effect on this
arrangement."
Early judicial management, which RAND defined as almost any court intervention
within 180 days of filing, was another CJRA principle. Planning was as haphazard here
as elsewhere. Two measures could not be tested because either all courts (in the case of
having counsel at pretrial conferences with authority to bind a party) or no courts (for
making parties sign requests for discovery and trial extensions) adopted them. RAND did
find that almost any early court attention reduced the "time to disposition," but at the
same time increased costs.
The CJRA was to test mandatory disclosure as a management technique, but the 1993
41
amendments to the Rules interrupted the experiment. It is perhaps worth noting, though,
that RAND has been unable to find significant effects for this procedure as it was
instituted before the 1993 amendments.
ADR was the other major CJRA principle. The Brookings Task Force had urged
experiments with the "multi-door" courthouse. The Act asked courts to "refer appropriate
cases" to ADR. Unfortuately, Congress didnothing to define "appropriate" or to make
sure that courts employed ADR in a way that would help us understand which methods
work. Techniques were not distributed carefully to make sure that each was tested. Courts
were given no instruction to ensure that they had large enough samples. And Congress
made no effort to create control cases.
Again implementation was grudging. Fourteen of the 20 pilot and comparison districts
sent so few cases to ADR that their dockets did not "permit detailed evaluation." Two
pilot districts actually sent a smaller percentage of cases to ADR after their plan went into
effect. Not all pilot districts even implemented the ADR recommended in their own
plans.
In prior work on court-ordered arbitration, RAND found that arbitration programs did
not significantly lower time to disposition or cost (though they may have increased
satisfaction). The CJRA's mediation outcomes were no different. Mediation had no
statistically significant effect on time to disposition, cost, perceived fairness, or
satisfaction. The results gave RAND "no justification for a strong policy recommendation
because we found no major program effects, either positive or negative."
The CJRA paired each pilot court with a comparison court. Predictably, Congress did
not order pilot courts to test reforms, nor did it preserve the status quo in comparison
courts. It was no surprise, then, that RAND could not find significant differences between
pilot and comparison courts.
A telling statistic is that 85 percent of judges told RAND that they had made "no
significant" changes to their practices. When RAND tried to explain why the pilot
program failed, three of its four reasons--judicial opposition to the Act as a matter of
policy, of principle (on grounds of judicial independence), and the Act's lack of an
enforcement mechanism--are all judge- related problems. Enforcement was a problem
only because judges would not adopt CJRA principles voluntarily. It is noteworthy that
where there was even a very light-handed sanction, the publication of cases over three
years old, courts did show marked improvement. The fourth retarding factor, the Act's
vague wording, is, as shown above, at least largely a result of Judicial Conference
interference.
Ever tactful, RAND clothed the problem in diplomatic language. It said that all pilot
courts "complied with the statutory language" given the CJRA's "loosely defined
principles." RAND added, however, that if one supposed that the courts' task was to
honor the "spirit" of the Act, they succeeded only "in varying degrees." The accurate
rendition of RAND's findings is that judges exploited the looseness they won from
42
Congress to thwart the Act's intended time-limit tests.
Business as usual
In spite of all these problems, RAND did find that firm time rules--trial dates and
discovery cutoffs--reduced case times and costs without jeopardizing satisfaction or
perceived fairness. The Conference understood the significance of this finding, which it
called RAND's "one clear finding" and "one of the most important" CJRA outcomes. Yet
the Conference, which had a statutory duty to tell Congress which CJRA principles
worked, did not recommend time rules. [FN4]
Moreover, a Federal Judicial Center survey, conducted at the advisory committee's
request to assist it in responding to Congress, found "overwhelming and emphatic support
for national uniformity of the discovery rules," and that "[e]arly discovery cutoff dates
and firm trial dates were recognized as the best court management tool to reduce the costs
of discovery." [FN5] RAND issued its own follow-up CJRA report, one also
commissioned by the advisory committee. [FN6] RAND found that early case
management cut case times by an average of 29 days. Early management increased costs
(again measured by lawyers' hours), but not when coupled with a mandatory discovery
plan. Together those two steps were associated with case resolution times that were 85
days shorter, without increased costs, and 104 days shorter when courts added a firm trial
date. Another time measure, shorter discovery cutoffs, created significant savings in time
and cost, again without lowering satisfaction or perceived fairness.
In spite of these findings, the Conference's Final Report to Congress *274 did not
recommend any time-based rules. All the Conference said about discovery time limits
was that it "encourage[d]" them in complex cases and would continue to study the issue
otherwise. On tracks, the Conference suggested that courts go right on deciding to track,
or not to track, on a local basis. In the same vein, the Conference argued for "continued
experimentation" with ADR. The report ended with a variety of warnings about expecting
too much.
The recently approved discovery amendments are no better. The Rules restrict discovery
as of right, a major change no matter how much the Judicial Conference advisory
committee wanted to suggest it was just a technical reallocation of discovery power.
[FN7] Discovery of right was limited to matters "relevant to the claim or defense," while
parties will get today's broader information "relevant to the subject matter involved in the
action" only on a showing of good cause. This change invites judges to side with parties
resisting discovery, and no doubt a number of judges will accept the invitation. At the
same time, the committee refused to take even the slightest steps toward time limits. The
committee was aware that lawyers and clients object to today's fractured procedures, that
"disparities of practice" make things harder and conflict with the Rules Enabling Act, and
that local powers make it "more difficult . . . to restore any semblance of national
uniformity." Yet it rejected even presumptive time limits. Such a rule might be
"desirable," but the committee parroted the local legal culture position that "dockets vary
43
too widely to permit a national rule" for trial dates. And without firm trial dates, the
committee felt, discovery cutoffs "could be worse than pointless."
To know oneself is not always a route to change, but change is hard to secure without
self-knowledge. In the case of federal civil justice reform, judicial self-awareness needs
to include a clear look at the fact that judges effectively gutted the CJRA. And judges
need to see the heavy price of preserving their discretion at all costs. This bias for local
control systematically underestimates the gains that could flow from certain uniform
changes. In the CJRA, it prevented honest experimentation with the intended reforms.
The growing list of substantive restrictions on discovery and even trial rights is more
destructive to the right for a fair trial than a few basic limits on the time of discovery and
trial.
Some judges may find it unfair to put them in the same boat as the Judicial Conference.
The Conference does not speak for all federal judges, nor do all federal judges participate
in Conference proceedings. Nonetheless, the Conference is the formal organization
through which the federal judiciary participates in procedural reform. It was the major
presence by far in the CJRA debates. And the best evidence of where judges personally
stood on the Act, their efforts to derail its implementation, confirmed that individually
they shared the Conference's strong dislike for the CJRA. So it seems fair to treat the
Conference's position as part of a larger judicial obstacle to the Act.
Judges inhabit a system of justice, not just a loose federation of independent institutions
that happen to share similar titles and powers. They will have to sacrifice some discretion
to realize the benefits in learning and practice that can come from some uniform
procedures.
[FNa1]. John Burritt McArthur is an attorney at Hosie Frost Large & McArthur in San
Francisco.
This article is a much condensed version of the author's Interbranch Politics and the
Judicial Resistance to Federal Civil Justice Reform, 33 U.S.F. L. Rev. 1 (1999).
[FN1]. See, e.g., Mullenix, The Counter-Reformation in Procedural Justice, 77 Minn. L.
Rev. 375, 376, 379, 400, 405-06 (criticizing "amateur" advisory groups)(1992).
[FN2]. Flanders, The unanswered question, 82 Judicature 55 (Sept.-Oct. 1998). Flanders
argued that proponents overstated the Act's potential from the beginning; the text here
shows that the Brookings report and first version of the CJRA contained a reasonable,
focused program that had a good chance of success, but the program did not survive its
legislative hazing.
[FN3]. RAND issued four reports on different aspects of the CJRA. The citations in text
are taken from all four of these reports, but RAND's overall findings can be accessed
easily in the summary report, Kakalik et al., Just, Speedy, and Inexpensive? An
Evaluation of Judicial Case Management Under the Civil Justice Reform Act (1996).
44
[FN4]. Judicial Conference of the United States, The Civil Justice Reform Act of 1990:
Final Report (1997).
[FN5]. Willging et al., Discovery and Disclosure Practice, Problems, and Proposals for
Change (1997).
[FN6]. Kakalik et al., Discovery Management: Furthur Analysis of the Civil Justice
Reform Act (1998).
[FN7]. The advisory committee claimed that "we have not proposed reducing the breadth
of discovery." Committee On Rules of Practice and Procedure, Judicial Conference of the
United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil
Procedure at 4 (Aug. 1998). But this reform makes no sense if that is not its purpose and
effect. New Rule 26(b)(2) encourages courts to limit discovery they feel might be
excessive on the party seeking discovery's paying "the reasonable expenses incurred by
the responding party." Depositions will be limited in length, too. See id. at 60.
45
The Wall Street Journal
Copyright (c) 1987, Dow Jones & Co., Inc.
Thursday, December 3, 1987
'Rocket Docket': Federal Courts In Virginia Dispense Speedy Justice
Paul M. Barrett
Staff Reporter of The Wall Street Journal
ALEXANDRIA, Va. -- Getting a case to trial is often an
ordeal. Skirmishing over procedural matters can churn up huge
expenses and result in years of delay.
But in the federal courts of eastern Virginia, the judges
hate foot-dragging and frivolous paper wars. Their courtrooms
have come to be known widely as the "rocket docket." They
produce speedy justice with a combination of unforgiving
rules and fierce pride in efficiency.
Around here, says one attorney, the judicial philosophy is
"put up or shut up." Only partly in jest, he says a lawyer's
death is "sometimes an excuse" for postponing a case, "but
not if there's another warm-blooded lawyer back at the
office."
Virginia's Eastern District is comprised of courthouses in
Alexandria, Richmond and Norfolk. A study by the
Administrative Office of the U.S. Courts shows that the
district's 12 judges consistently beat all 93 other federal
jurisdictions in elapsed time between the filing of
litigants' papers and the start of a civil trial. The
national median is 14 months; in some districts, it's more
than two years. But in the rocket docket, it's only five
months.
Not surprisingly, this accelerated pace draws criticism
from some attorneys -- particularly criminal defense lawyers.
They complain that the system tends to favor prosecutors,
whose larger staffs can better handle the rapid turnover of
46
cases. But most lawyers concede that the advantages are
overwhelming: Clients generally save money on legal fees and
have more confidence that the court system works.
Jonathan Hauser, a Norfolk attorney, recounts a 1985 suit
in which a fisherman he represented won $147,000 from an
insurance company after his boat was destroyed in a storm. In
another jurisdiction, "we might have faced two years of
litigation," says Mr. Hauser. And during that time, he says
his client probably would have gone bankrupt. Instead, the
case was heard after five months of preparation, and the
trial took two days.
Whenever possible, Virginia lawyers seeking quick action
look for ways to bring suits in the Eastern District. U.S.
District Judge Richard Williams, a member of the rocket
docket, insists that the secret to swift results is no more
complicated than making clear who wears the black robes.
In private, the 64-year-old judge is an unpretentious man
who avoids legal jargon, calls many cases "no-brainers," and
carries court documents in a canvas U.S. Mail satchel. But in
court, he rules imperiously. When lawyers dawdle, he
interrupts in a booming voice, questioning witnesses himself.
"Don't play games," he warns one attorney. "I'm not going to
let this jury be abused by havoc."
Presiding over a recent criminal trial of a man charged
with harboring a fugitive, he rapidly grows impatient with
defense efforts to prove contradictions in a witness's
testimony. "There is no inconsistency," he declares, and that
settles it. Several jurors nod and scribble notes.
Marvin Miller, the defense attorney in the case, says
Judge Williams is "great" on expediting plea bargains, but
can be "terrible" for defendants trying to impeach government
witnesses.
47
Moreover, Mr. Miller complains that the Eastern District
judges' "penchant for speed has little to do with a penchant
for fairness." (Nevertheless, the jury convicted Mr. Miller's
client on only a lesser charge of lying to federal marshals.)
Critics of clogged federal courts usually blame increasing
litigation on such matters as mass toxic torts and criminal
appeals. But Judge Williams says rising caseloads are only
part of the problem. He also attributes much delay to
lawyers' manipulation of "discovery" -- the pretrial
investigation of an opponent's case -- and on peripheral
motions designed to wear down the other side.
In the past 15 years, "you've seen the rise of a whole bar
who specialize in this 'motions' practice," says the judge,
barely disguising his distaste for the trend. "Too many
judges have let lawyers run the courts" by surrendering
control over discovery deadlines and trial schedules. "Around
here, the judges tell the lawyers what to do."
Judge Robert Merhige Jr., who sits in Richmond and is
frequently asked by other jurisdictions to help clear their
backlogs, adds that attorneys "know we mean business and
conform their behavior accordingly."
Robert Bennett, a Washington lawyer who practices
nationally, confirms that "any honest litigator" will admit
to using the tactics Judge Williams describes. But ideally,
he says, "lawyers shouldn't be tying down the courts to serve
their clients." The Eastern District's success in
disciplining the bar makes it "the best court I've ever been
in," he says. He also echoes the consensus here that judges
elsewhere could easily adopt the rocket docket's no-nonsense
approach.
Judge Williams applied the heat in a recent class action
involving 7,000 current and former prisoners charging jail
overcrowding in Prince William County. Lawyers in the case
estimate that, in any other jurisdiction, discovery in such a
48
suit could have lasted years; instead, they were allowed six
months without extensions.
"Knowing that trial date is carved in stone focuses
everyone's attention," says Victor Glasberg, the prisoners'
lawyer. "You discover you can build your case" in the time
allowed, "and the certainty that you'll get a hearing quickly more than outweighs" any
sacrifices.
Mr. Bennett, the Washington lawyer, cites another
difference. In other courts, he says, "you learn your case as
you go -- after filing" a suit. With an open-ended court
calendar, "you file a zillion interrogatories, 50 deposition
notices and go on a great fishing expedition." In Virginia's
Eastern District, he says, "you can't get away with it."
To expedite cases, rocket-docket judges also squeeze
standard judicial guidelines and apply their own home-grown
restrictions. In most Eastern District cases, for example,
lawyers can't depose more than five people who aren't
plaintiffs or defendants. Judge Williams restricts criminal
defendants to five character witnesses and all litigants to
one hired expert per discipline. He generally takes an hour
to empanel a criminal jury; elsewhere the process routinely
consumes an entire day.
In the prisoners' class action, lawyers expected the trial
to last weeks. Judge Williams set, and met, a deadline of three days. He pushed the case
forward with the unusual
technique of allowing lawyers themselves to summarize for the
jury the testimony of scores of prisoners and county
officials.
If the suit had arisen in state court, "we could have
delayed it as a litigation tactic for years," says John
Foote, the county attorney, who ultimately lost. The
prisoners received $250,000, and the court ordered the jail
shut down -- an outcome Mr. Foote now characterizes as
"fair."
49
Some lawyers and judges trace the rocket docket's roots to
Judge Walter Hoffman of Norfolk, who single-handedly cleared
a legendary backlog in the late 1950s by working around the
clock and seven days a week. Judge Hoffman, now 80 years old
and semi-retired,modestly downplays such accolades. But he
admits that his workaholic spirit came to pervade the
jurisdiction.
"We decided we didn't want to miss a single trial date,"
he recalls, "and we still don't."
For people of modest means, Mr. Glasberg says, the rocket
docket is most important as "a great equalizer." That's
because it lessens the ability of large law firms or the
government to bury opponents in blizzards of pre-trial
briefs. Invoking an aphorism heard frequently in the Eastern
District, he adds: "For a lot of people, justice delayed
really is justice denied."
50
Copyright (c) 1998 University of Richmond Law Review Association
University of Richmond Law Review
May, 1998
32 U. Rich. L. Rev. 799
THE EASTERN DISTRICT OF VIRGINIA: A WORKING SOLUTION FOR
CIVIL JUSTICE REFORM
Heather Russell Koenig *
***
IV. The Pros and Cons of "Speedy Justice"
"The Rocket Docket blasts off at 9:00 a.m. every Monday at the red brick federal
building in Alexandria. That's 9:00 sharp, not 9:01. This is Northern Virginia, counselor, .
. . [and w]hen the bailiff cries, 'Oyez, oyez,' . . . you had better be ready." n109
It is the theory that "justice delayed is justice denied" upon which the Eastern District
bases its fast-paced calendar. n110 But does this speedy justice come at the expense of
denied justice? Do parties in litigation generally prefer a quick trial with limited
depositions and discovery over a more drawn-out trial that may be more comprehensive?
Does the expedited [*815] process disadvantage smaller firms, solo practitioners, or
insolvent defendants? In short, do the benefits of a speedy trial or adjudicatory process
outweigh the risks of justice denied? Subparts A and B discuss the relative advantages
and disadvantages of parceling justice on an expedited basis.
A. Advantages of a Rocket Docket
"It's amazing how much lawyers can get done if they know that it's crash and burn
next month." n111 Generally, the feeling among lawyers practicing in the Eastern
District is that if one is given the time to continue a case, one will take the time, and that
if a lawyer is not subject to strict deadlines and sanctions for disobeying those deadlines,
he will not impose them on himself. A lawyer practicing in the Eastern District explained
that "the beauty of the Rocket Docket is that it brings things to a head. . . . When a lawyer
knows he's got to fish or cut bait--settle or roll the dice in a trial--it tends to focus the
mind." n112 The general consensus amongst the attorneys practicing in the Eastern
District is that, while it is unusually difficult to comply with the grueling schedule, it
serves as an incentive to keep them diligently preparing for trial. "Most area attorneys-especially those representing clients with limited resources--prefer a court where cases
aren't dragged out." n113
Aside from providing incentive for attorneys, another advantage of the Rocket
Docket is that federal drug suspects are more likely to be prosecuted and convicted in the
Eastern District. n114 The United States Attorney's Office in the Eastern District
51
prosecuted almost ninety percent of the suspects referred to it by the Drug Enforcement
Agency ("DEA") in 1995, the most recent year for which such statistics are available.
n115 Federal prosecutors in neighboring Maryland, on the other hand, pressed charges
against only sixty percent of DEA suspects, and the District of Columbia prosecuted only
seventy percent in its federal court. n116 In the cases that did go to federal district court,
the prosecutors in the Eastern District of Virginia secured more convictions and longer
prison terms than did their counterparts in neighboring Maryland and D.C. n117 While
not dispositive, the district's high percentage of convictions could be a result of the court's
fast-paced calendar. In other words, the more suspects that are brought through the
system, the more convictions the court can give.
United States prosecutors clearly have an advantage in the Eastern District.
Arguments have been made that private plaintiffs also enjoy a strategic advantage in the
Eastern District, because defendants must "scramble to develop and document defenses."
n118 "Indeed, the mere filing of such an action in this court has caused many defendants
to settle quickly." n119 The importance of pre-filing investigation is stressed to new
attorneys practicing in the Eastern District. n120 Once they decide to bring suit, and
assuming that the statute of limitations is not impending, plaintiffs can take a great
amount of time collecting data and organizing their legal arguments for trial. Knowing
that continuances are rarely granted, they can do the majority [*817] of research and
preparation before filing and simply wait for responses from the defense. n121
Plaintiffs in patent or intellectual property ("IP") litigation have the most to gain
from suing in the Rocket Docket. n122 Patent holder plaintiffs in IP suits often are suing
for injunctive relief; thus, the quick time frame is essential. n123 It is suggested that IP
plaintiffs go so far as to interview all relevant witnesses, retain and consult with technical
and damage experts, and prepare discovery requests all before filing suit. n124 The
patent holder also should anticipate all discovery requests and collect relevant
information to meet those requests. n125 "Although the lawyers will be intensely busy
for an abbreviated period of time, the client will benefit from a prompt and cost effective
litigation strategy." n126
"It is not just plaintiffs who can benefit from the [Eastern District]'s push for speedy
resolution." n127 James Myers, a partner in the Washington Office of Venable, Baetjer,
Howard, and Civiletti, emphasizes the importance of defendants' responding "instantly"
to all civil complaints filed in the Eastern District. n128 He affirms that as long as a
defendant understands [*818] how the system works, he can develop and implement a
winning defense strategy using the EDVA's practices to his advantage. n129 Myers
suggests three tactical approaches for defense attorneys in the Rocket Docket. First,
defense teams should concentrate their energies and resources on presenting substantive
defenses rather than using obstructionist discovery tactics. n130 Second, if the
defendant is able to develop an unexpected substantive defense, the very speed of the
court begins to work against the plaintiff. n131 Moreover, as a consequence of the
accelerated schedules, plaintiffs often make mistakes, and defendants should be prepared
to exploit them. Finally, Myers alerts defense attorneys to the fact that, generally, judges
in the Eastern District are not fearful of reversal and are quite willing to rule in the
defendant's favor on liability issues when the evidence is presented; therefore, defendants
should do so early, within weeks of filing. n132
52
In general, the more active judges become in the pretrial process, the more that abuse
of the judicial system will decrease. If judges let certain practices, such as obstructive
discovery tactics and unchecked continuances, plague their courtrooms, no one will step
up to alter the status quo. However, if judges become active participants with the
scheduling of trials and if they affirmatively convey their disapproval of uncooperative
litigants, attorneys ultimately will come to view judges as allies--rather than bullies-against the common enemy, the abusive opponent. n133 [*819]
B. Disadvantages of a Rocket Docket
Certain critics of the Eastern District of Virginia argue that "too much speed . . . can
deny justice." n134 The chief criticisms of the Rocket Docket are that certain parties are
disadvantaged by the speedy calendar and that judges tend to weigh the importance of
rapidity over that of justice. An Alexandria attorney told Legal Times, "I think in some
cases, when judges are overconcerned about keeping things moving, it may work against
the interest of justice." n135
As with any system that is successful or unique, there always will be fault finders.
Some critics of the Eastern District argue that defendants are disadvantaged, because they
seldom are given adequate preparation time to devise strong defenses, and they can not
rely--as they can in other courts--on court continuances. n136 Others argue that if a
defense team responds quickly enough and learns about the intricate workings of the
court, it is the plaintiffs that the Rocket Docket disadvantages. n137 Still others contend
that it is the sole practitioners who are disadvantaged the most by the abbreviated
schedules, because they are forced to allocate their limited resources among several
pending cases. n138 [*820]
Some attorneys claim that the prejudice is inherent in the system itself. The judges
sitting in the Eastern District expect both total compliance to the time-tested local rules
and shared reverence for their existence. Out of town counsel are barely tolerated and are
expected to be intimately familiar with the rules of the Eastern District's game. It is for
this reason that nearly all out of town parties maintain local counsel. n139 Another
disadvantage is that, in the Norfolk division of the Eastern District of Virginia, the judges
do not keep separate calendars. n140 As a result, litigants do not necessarily know
which judge will try the case, because assignments can be changed at the last minute. If
one judge becomes unavailable to try a case, another judge will try it, instead of having
the case rescheduled for the first open date on the original judge's calendar. n141 This
system allows the court's resources to be kept in full use, allows more cases to be tried
and prevents one judge's calendar from delaying the operation of the court as a whole. It
also, however, wreaks havoc on the nerves of attorneys in the district.
The judges of the Eastern District argue that their concentration on efficiency does
not compromise the judicial process or the process by which they make their decisions.
n142 It is for this reason that some judges in the Eastern District dislike the moniker
"Rocket Docket." "It appears to foster the incorrect notion that speed is considered more
important than justice." n143
Yet lawyers in Virginia still voice concerns that some cases are "rushed to judgment"
n144 and that, at times, judges' concentration on streamlining makes it impossible for the
attorneys to actually try their own cases. n145 Critics of the Eastern District's practices
53
simply question whether the "remarkable dispatch" with which the Eastern District
disposes of cases comes at the cost of quality of justice. n146 They believe that "speed
of the litigation process should be managed so that the truth, not the speed, determines
the outcome." n147
V. Alternative Approaches
This article recommends that federal districts overcome their current backlog and
delay by adopting a Rocket Docket case management system similar to that in the Eastern
District of Virginia. n148 It is unrealistic, however, to assume that a United States
district court can make such a drastic overhaul of its judicial traditions in one fell swoop.
If courts are anxious or hesitant to change, they should use methods of expediting justice
that might aid in the necessary transition from backlogged to streamlined dockets. This
article considers two such alternative approaches.
First, the Eastern District served as a model for the Federal Trade Commission
("FTC") in its recent institution of a "fast track" process. n149 A transformation was
needed within the FTC, n150 and as a result the commission designed a system that
allows a full administrative proceeding in thirteen months or less after the imposition of a
full-stop preliminary injunction order. n151 The FTC utilizes certain factors to
determine which of its cases are appropriate candidates for an expedited adjudication and
which should proceed through the regular channels of review. n152 For example, if it is
likely that an agency action [*822] will raise new, untested, or novel theories of antitrust
liability, the commission may not designate the speediest alternative. n153 Factual
complexity of the case also may limit expedited track availability. Once a case is
designated as a Rocket Docket case, the respondent is advised of its opportunity to elect
the fast track option at the time the injunction action is authorized by the commission.
Once elected by the respondent, all cases must be completed within thirteen months of
the triggered event. n154
A plan similar to that of the FTC could be designed for use in federal district courts
that are not yet prepared to revamp their entire docket system. Using the FTC as a model,
a district court clerk or magistrate judge could summarily analyze the pending cases in
the district and determine--using customized factors--which cases are suitable for
expedited adjudication. Factors to be considered could include: the factual complexity of
the case; the number of parties to the dispute; whether there exists a clear and
unambiguous precedent on the matter; and whether the case is one of first impression. In
this manner, the court could gradually diminish docket backlog while simultaneously
easing judges, many of whom have been on the bench for years, into a new ideology.
A second alternative strategy is one that currently is being used in the courthouse in
Johnson County, Indiana. n155 In order to decrease the backlog of divorce cases on
their docket, the county judges asked that litigants be ready for trial on a one or two-day
notice. Assuming that both parties agree, if a morning or afternoon is free on a judge's
calendar, his staff will notify the parties of the first case on the expedited list that they
must prepare for their hearing the following day. n156 The only draw [*823] back to
this scheme seems to be a circuit court judge's concern: "In some ways this . . . is a
disadvantage to us because when we get a free half-day we don't go play golf, we read
cases or make rulings." n157
54
A similar scenario could aid district courts in their attempts to eradicate docket
backlog. Without the radical changes required for establishing a full Rocket Docket, a
court could simply create a "call list" of parties willing to have their cases heard on short
notice. This alternative requires no evaluating of factors to determine whether a case is
best suited for an accelerated review. The sole factor for consideration is whether the
parties to the dispute wish to participate.
While the above two suggestions may serve to ease certain established courts into a
new method of accelerated justice, they are inadequate surrogates for the implementation
of Rocket Dockets into every federal district court.
VI. Conclusion
In enacting the CJRA, Congress found that in order to identify, develop, and
implement solutions to problems of cost and delay in civil litigation, "it is necessary to
achieve a method of consultation so that individual judicial officers, litigants, and
litigants' attorneys who have developed techniques for litigation management and cost
and delay reduction can effectively and promptly communicate those techniques to all
participants in the civil justice system." n158 This exercise is unnecessary. The federal
judiciary need only look to one of its own and adopt the Eastern District of Virginia's
techniques to eradicate, once and for all, the existence of judicial inefficiency and
backlogged dockets. n159 [*824]
The civil justice plan that the Eastern District adopted, in compliance with the CJRA,
made no changes whatsoever to its existing procedures. n160 The introduction to the
plan devised by the Eastern District's advisory group states that the court's existing
procedures "have been most effective in controlling not only litigation expenses but also
in reducing delays in our civil docket." n161 The report also concluded that the EDVA
had no problem with undue expense or delay. n162 Consequently, the advisory group
unanimously recommended that the Eastern District simply retain its current case
management requirements encompassed in its local procedures. n163
The path to federal court reform may not necessarily be that suggested by the CJRA,
but instead may be simply to recognize and activate the role of judge as manager of civil
litigation. The case management statistics of the EDVA n164 illustrate that, despite the
growing burden of federal district caseloads, existing judicial resources can efficiently
and effectively manage federal district dockets. The Eastern District of Virginia, with one
of the heaviest civil and criminal caseloads in the nation, has no undue expense or delay
with regard to the processing of those claims. Thus, it is difficult to conceive why so
many federal [*825] district dockets are hopelessly backlogged. n165 It is also curious
why Congress did not look more towards the practices of the Eastern District and its
progeny when crafting remedies for the national judicial "crisis." n166
The Eastern District of Virginia is the perfect model for other federal districts
because, in many respects, it is an "average" federal district. Although the Federal
Judicial Center historically has treated it as a metropolitan court, n167 it has
characteristics of both large metropolitan and small rural courts due to its divisional
structure. The Eastern District has managed to keep to its system of firm trial dates for
more than thirty years, despite the fact that it encompasses the port city of Norfolk, the
Washington, D.C. suburbs, and the Interstate 95 corridor cities of Richmond and
55
Petersburg, which result in an abundance of drug cases as well as shipyard-related
asbestos cases. n168 In short, aside from its extraordinary case management practices,
and the fact that it has a very heavy caseload--including the third most criminal case
filings in the nation n169 --the Eastern District is an average federal district court and,
thus, an ideal archetype for all other district courts.
The Eastern District of Virginia employs vital practices that set it apart and above the
rest. Foremost, the judges in the EDVA are committed to handling the district's caseload
fairly and expeditiously, and they have developed procedures--codified in their local
rules--that reflect these essential objectives. n170 These include standing orders and
procedures that specifically aim at reducing abuse of litigation tools and that encourage
all parties to a suit to work together towards a common goal, justice. All of these
practices depend on the judge's early and continuous monitoring and intervening in civil
cases, no matter [*826] how simple or complex. n171 The judges, rather than the
lawyers, control the docket. Attorneys practicing in the Eastern District respect the court's
doctrines and priorities and follow the rules with reverence. "The Eastern District, after
all, does things the old-fashioned way--with justice, not the lawyers, center stage." n172
In conclusion, the solution to the federal "crisis" is not in alternative dispute
resolution or in other esoteric case management devices. The statistics speak for
themselves. The key to reduced expense and delay in federal litigation is firm judicial
control of the docket, as envisioned in Rule 16 of the Federal Rules of Civil Procedure
and as carried out in the Eastern District of Virginia. The federal judiciary should stop
"assessing" the conditions of their dockets and "identifying trends in case filings," n173
and they simply should begin developing local rules such as those of the Eastern District
of Virginia and putting them into effect immediately.
FOOTNOTES:
* B.A., 1993, College of William & Mary; J.D., 1997, The American University
Washington College of Law. Law Clerk for the Honorable Claude M. Hilton, Chief
Judge, United States District Court for the Eastern District of Virginia.
The views expressed in this article are those of the author and should not be
attributed to Judge Hilton or to anyone affiliated with the United States Eastern District
of Virginia. The author would like to thank Darren Koenig for his patience and support
and Professor Charles W. Nihan for his direction and encouragement.
***
n109 Gold, supra note 7, at 49.
n110 The motto "Justice Delayed, Justice Denied" hangs above the doors of the new
courthouse in the Alexandria division of the Eastern District of Virginia.
n111 Eric Herman, Putting the Rocket in the Docket, 76 A.B.A. J. 32, 32 (1990)
(quoting Justice Louis Ceci of the Wisconsin Supreme Court).
n112 Gold, supra note 7, at 49 ("It's human nature not to settle unless you're up
against a deadline.").
56
n113 Id.
n114 See Brooke A. Masters, Federal Drug Suspects Have Harder Time in Virginia:
U.S. District Court Trial, Longer Term Likelier, Wash. Post, Mar. 30, 1997, at B-1.
n115 See id.
n116 See id. The Eastern District's large percentage is due largely to the fact that the
United States attorney's office with responsibility for the Virginia suburbs brings charges
against a higher proportion of suspects referred to it by the DEA--even low level street
dealers, couriers, and drivers. See id. In Maryland and the District of Columbia, those
"smaller" cases often are handed over to local courts, where sentences usually are shorter.
See id.
n117 See id. (citing statistics compiled by Syracuse University's Transactional
Records Access Clearinghouse). The Syracuse analysts looked only at suspects
investigated by the DEA, representing 50% to 65% of all federal drug suspects in the
Washington area. The remaining cases are handled by the Federal Bureau of
Investigation, the United States Customs Service, and other federal agencies. See id.;
Marty Rosen, Justice No Remedy for Family's Pain, St. Petersburg Times, July 26, 1995,
at 1-B (discussing how black male defendants from the inner city of Washington are
treated in Alexandria: "It's a long distance from the inner city in Washington, D.C., to out
here. It may only be a mile, but it's a long mile.").
n118 Myers, supra note 9, at 27; see infra notes 128-32 and accompanying text
(discussing actions defendants can take to make the expedited trial schedule work to their
advantage).
n119 Myers, supra note 9, at 27.
n120 An accomplished Eastern District attorney stresses the importance of pre-filing
investigation when practicing in the Eastern District. See Fed. Discovery News, supra
note 67, at 7 (quoting Terence Ross, partner in the Washington Office of Gibson, Dunn
and Crutcher). Mr. Ross also suggests that attorneys hire good local counsel and prepare
their client for what may be a "grueling ordeal." See id.
n121 See generally Forum: Litigation Reduction Through Reform, The Metropolitan
Corp. Couns., Jan. 1997, at 42 (analyzing how tight time schedules can encourage parties
to settle) [hereinafter Metropolitan Corp. Couns.].
n122 See Brian T. Foley, Catch a Ride on the Rocket Docket, Conn. L. Trib., Oct. 7,
1996, at 4. Given the fact that infringement of a commercially valuable patent is likely to
occur in multiple jurisdictions, and that large corporate infringers often will have
regularly established places of business in many jurisdictions, obtaining venue in the
Eastern District of Virginia, or other expedited district courts, often is relatively easy. See
id.
n123 "The sooner the cases are tried, the sooner infringers can be stopped from
copying the product." Wagenhofer, supra note 2, at 1. In a recent patent infringement
case, the counsel for plaintiff Black & Decker could have filed the case in any federal
court, because some of the defendants were foreign companies and others did business
nationwide. Because of its reputation for having the fastest justice in the nation, the
57
lawyer chose to bring the suit in the Eastern District of Virginia. See id.
n124 See Foley, supra note 122, at 6.
n125 Most defendants in IP cases will seek to invalidate the patent by presenting
evidence of previous uses of the invention, referred to as "prior art." Such a global search
for prior art can be quite time consuming. Thus, a shorter period of time from filing to
trial truncates the period of time in which a defendant-infringer can search for a valid
defense. See id. at 7.
n126 Id. at 6.
n127 Myers, supra note 9, at 27.
n128 See id.
n129 See id.
n130 See id. at 28. Myers explains that "while these tactics may work in other
jurisdictions, they bring nothing but trouble here." Id. He also cites the fact that EDVA
judges are quick to sanction for such behavior and will not excuse substantive errors by
the litigants or their counsel. See id.
n131 See id.
n132 See id. Myers compares this practice of the Eastern District with other districts
and states that in some other jurisdictions, when a defendant presents a dispositive motion
that requires a close call, the judge may defer decision until after a settlement conference
or even trial. On the other hand, the judges in the Eastern District "make difficult
decisions when the evidence appears to support them, without undue fear of reversal." Id.
n133 In a Washington Post interview, Judge Albert V. Bryan, Jr. of the Eastern
District of Virginia discussed the Eastern District's case management:
We'd probably all live longer if we just sat back and let cases go on, . . . . But judges
here are brought up to move things along. If repetitive questions are asked, the judges
generally don't put up with it. The defense lawyers get in, they get out, they move on,
they bill their client. If it's not to their taste, they appeal. So far, the courts have not
reversed any cases because of speed. To be candid, most in the defense bar are relieved to
be free of all that detail.
Marc Fisher, A Case That Courts Criticism: Simpson Trial Brings Calls for Legal
Reform, Wash. Post, May 22, 1995, at A-1 (emphasis added); see "Rocket Docket"
Upheld, Nat'l. L.J., June 19, 1995, at A10 (reporting Ninth Circuit's decision that
defendant's limited discovery under Rocket Docket schedule was not unfair and could not
support a reversal of the trial).
n134 Howard Mintz, Ninth Circuit Backs Off "Rocket Docket" Criticism, Recorder,
June 2, 1995, at 2 (quoting Ninth Circuit Judge Betty Fletcher who argued that justice
was sacrificed for the sake of speed).
n135 Rodriquez, supra note 4, at 6 (statement by Lisa Kemler, criminal defense
attorney and partner in Alexandria's Moffitt, Zwerling and Kemler).
n136 See Metropolitan Corp. Couns., supra note 121, at 42.
58
n137 See supra notes 129-32 and accompanying text.
n138 See Neal Miller, An Empirical Study of Forum Choices in Removal Cases
Under Diversity and Federal Question Jurisdiction, 41 Am. U. L. Rev. 369, 405 (1992).
"Too rapid a court pace can have adverse affects on solo practitioners who . . . may prefer
the slower pace available in state court, without necessarily seeking delay as a tactical
weapon." Id. at n.139.
n139 See Hench, supra note 32, at 263; Fed. Discovery News, supra note 67, at 7
(stressing the importance of hiring good local counsel).
n140 See Hench, supra note 32, at 277.
n141 See id.
n142 See Myers, supra note 9, at 27.
n143 Id.
n144 Gold, supra note 7, at 49.
n145 See Rodriguez, supra note 4, at 6.
n146 See Paul D. Carrington, A New Confederacy? Disunionism in the Federal
Courts, 45 Duke L.J. 929, 954 (1996).
n147 Mintz, supra note 134, at 2; see also Rodriguez, supra note 4, at 7. "Some
practitioners say the quality of justice cannot and should not be measured solely by how
fast a court rushes through a case." Id.
n148 See infra Part VI.
n149 See Robert W. Doyle, Jr., Modeled in Part on Expedited Federal Court
Procedure, the FTC's New "Rocket Docket" Allows for the Completion of Administrative
Proceedings in 13 Months, Nat'l. L.J., Jan. 6, 1997, at B5.
n150 In defending an FTC preliminary injunction challenge to a proposed merger or
acquisition, antitrust lawyers often would tell the federal judge that a full-stop injunction
forcing the parties into never-ending administrative litigation with the FTC was not in the
private interest of the merging firms. See id. Such a course of action is costly and would
take years before final agency resolution. The attorneys would then argue that the private
"equities" of the merging parties weigh in favor of consummation of the deal and it
should proceed smoothly with no commission interference. See id. Such arguments of
equity have received some success in the courts. See id.
n151 See id.
n152 See id. at B6. The following factors are considered when determining whether a
case is ripe for an expedited judicial proceeding: the perceived quality or significance of
the case; the confidence the agency places in the evidence established during the
investigative stages; the likelihood of immediate and ongoing competitive harm resulting
from a proposed merger transaction; and the overall litigation risks perceived by the FTC.
See id.
n153 See id.
59
n154 See id.
n155 See generally Mike Magan, Johnson County Judges Launch "Rocket Docket" to
Blast Backlog of Divorce Cases, Ind. Law., Apr. 17, 1996, at 11.
n156 See id. Judge James Coachys of the Johnson County Superior Court explained,
"I have found that the most frustrated litigants usually are the ones who can't get their
divorces heard because their case gets knocked off by a long jury trial--especially in cases
involving kids. . . . Those litigants are desperate to move on with their lives." Id.
n157 See id. (statement by Judge James Coachys of the Johnson County Superior
Court).
n158 Pub. L. 101-650, <sect> 102(4), 104 Stat. 5089 (1990).
n159 See Thornburgh, supra note 66, at 1088 (concluding that federal reform
measures should "look to the rigorous case-management techniques employed by judges
in the Eastern District of Virginia and their 'rocket-docket' approach that moves cases
along at a very rapid rate and tolerates little delay").
n160 See U.S. Dist. Court for the E. Dist. of Va., Civil Justice Expense and Delay
Reduction Plan (1991) [hereinafter Advisory Group's Report]; Tobias, supra note 18, at
98 (describing implementation of CJRA by Eastern District).
n161 Advisory Group's Report, supra note 160, at 1.
n162 See id. at 2.
n163 See id. The Eastern District's Advisory Group outright rejected the
incorporation of any of the principles and guidelines prescribed by the CJRA. See 28
U.S.C. <sect> 473 (outlining CJRA's recommended content of civil justice expense and
delay reduction plans); Advisory Group's Report, supra note 160, at 2. The group found
the recommendations unnecessary because most already were embodied in the Eastern
District's local rules of procedure. See id. Also, the group concluded that adopting the
recommended alternative dispute resolution ("ADR") mechanisms, see 28 U.S.C. <sect>
473(a)(6), would be counterproductive in the sense that they would increase cost or
delay. See id. But see Tobias, supra note 18, at 99 (describing Eastern District's rejection
of ADR techniques as "typical" and scrutinizing court's decision to institute none of the
recommended changes because "it is difficult to believe that no beneficial modification
could be instituted"). The advisory group found no "convincing evidence" that the use of
ADR mechanisms would reduce expense or improve the quality of justice dispensed by
the court. See Advisory Group's Report, supra note 160, at 6-7. Additionally, the group
determined that ADR rarely affects the time devoted to discovery--which the Eastern
District felt is the major source of delay and cost--and affirmed that the availability of
early, firm trial dates before Article III judges diminished the need for ADR. See id.
n164 See supra Part III.
n165 See Appendix A (illustrating the time intervals required for federal courts to
handle a case from filing to disposition).
n166 See Dayton, supra note 6, at 488.
n167 See id. at 451 (referencing Steven Flanders, Federal Judicial Center, Case
60
Management and Court Management in United States District Courts 2 (1977)).
n168 See id. at 235 (discussing the broad range of demographics included in the
Eastern District's jurisdiction).
n169 See supra Part III and notes 89-92.
n170 See supra notes 44-88 and accompanying text (explaining local rules regarding
motions, depositions, discovery, and sanctions).
n171 See supra notes 32-34 and accompanying text (discussing judge's role in pretrial
activities).
n172 Gold, supra note 7, at 52.
n173 28 U.S.C. <sect> 472(c)(1) (outlining the duties of advisory groups so that they
may make expense and delay reduction plan recommendations).
61
UNITED STATES CODE SERVICE
Copyright © 2002 Matthew Bender & Company, Inc.,
All rights reserved
FEDERAL RULES OF CIVIL PROCEDURE
III. PLEADINGS AND MOTIONS
Rule 16. Pretrial Conferences; Scheduling; Management
(a) Pretrial Conferences; Objectives. In any action, the court may in its discretion direct
the attorneys for the parties and any unrepresented parties to appear before it for a
conference or conferences before trial for such purposes as
(1) expediting the disposition of the action;
(2) establishing early and continuing control so that the case will not be protracted
because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough preparation, and;
(5) facilitating the settlement of the case.
(b) Scheduling and Planning. Except in categories of actions exempted by district court
rule as inappropriate, the district judge, or a magistrate judge when authorized by district
court rule, shall, after receiving the report from the parties under Rule 26(f) or after
consulting with the attorneys for the parties and any unrepresented parties by a
scheduling conference, telephone, mail, or other suitable means, enter a scheduling order
that limits the time
(1) to join other parties and to amend the pleadings;
(2) to file motions; and
(3) to complete discovery.
The scheduling order may also include
(4) modifications of the times for disclosures under Rules 26(a) and 26(e)(1) and of the
extent of discovery to be permitted;
(5) the date or dates for conferences before trial, a final pretrial conference, and trial;
and
(6) any other matters appropriate in the circumstances of the case.
The order shall issue as soon as practicable but in any event within 90 days after the
appearance of a defendant and within 120 days after the complaint has been served on a
defendant. A schedule shall not be modified except upon a showing of good cause and
by leave of the district judge or, when authorized by local rule, by a magistrate judge.
(c) Subjects for Consideration at Pretrial Conferences. At any conference under this rule
consideration may be given, and the court may take appropriate action, with respect to
62
(1) the formulation and simplification of the issues, including the elimination of
frivolous claims or defenses;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents which will avoid
unnecessary proof, stipulations regarding the authenticity of documents, and advance
rulings from the court on the admissibility of evidence;
(4) the avoidance of unnecessary proof and of cumulative evidence, and limitations or
restrictions on the use of testimony under Rule 702 of the Federal Rules of Evidence;
(5) the appropriateness and timing of summary adjudication under Rule 56;
(6) the control and scheduling of discovery, including orders affecting disclosures and
discovery pursuant to Rule 26 and Rules 27 through 37;
(7) the identification of witnesses and documents, the need and schedule for filing and
exchanging pretrial briefs, and the date or dates for further conferences and for trial;
(8) the advisability of referring matters to a magistrate judge or master;
(9) settlement and the use of special procedures to assist in resolving the dispute when
authorized by statute or local rule;
(10) the form and substance of the pretrial order;
(11) the disposition of pending motions;
(12) the need for adopting special procedures for managing potentially difficult or
protracted actions that may involve complex issues, multiple parties, difficult legal
questions, or unusual proof problems;
(13) an order for a separate trial pursuant to Rule 42(b) with respect to a claim,
counterclaim, cross-claim, or third-party claim, or with respect to any particular issue in
the case;
(14) an order directing a party or parties to present evidence early in the trial with
respect to a manageable issue that could, on the evidence, be the basis for a judgment as a
matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c);
(15) an order establishing a reasonable limit on the time allowed for presenting
evidence; and
(16) such other matters as may facilitate the just, speedy, and inexpensive disposition of
the action.
At least one of the attorneys for each party participating in any conference before trial
shall have authority to enter into stipulations and to make admissions regarding all
matters that the participants may reasonably anticipate may be discussed. If appropriate,
the court may require that a party or its representatives be present or reasonably available
by telephone in order to consider possible settlement of the dispute.
(d) Final Pretrial Conference. Any final pretrial conference shall be held as close to the
time of trial as reasonable under the circumstances. The participants at any such
conference shall formulate a plan for trial, including a program for facilitating the
admission of evidence. The conference shall be attended by at least one of the attorneys
who will conduct the trial for each of the parties and by any unrepresented parties.
(e) Pretrial Orders. After any conference held pursuant to this rule, an order shall be
entered reciting the action taken. This order shall control the subsequent course of the
63
action unless modified by a subsequent order. The order following a final pretrial
conference shall be modified only to prevent manifest injustice.
(f) Sanctions. If a party or party's attorney fails to obey a scheduling or pretrial order, or
if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if
a party or party's attorney is substantially unprepared to participate in the conference, or
if a party or party's attorney fails to participate in good faith, the judge, upon motion or
the judge's own initiative, may make such orders with regard thereto as are just, and
among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in
addition to any other sanction, the judge shall require the party or the attorney
representing the party or both to pay the reasonable expenses incurred because of any
noncompliance with this rule, including attorney's fees, unless the judge finds that the
noncompliance was substantially justified or that other circumstances make an award of
expenses unjust.
HISTORY:
(Amended Aug. 1, 1983; Aug. 1, 1987; Dec. 1, 1993.)
64
UNITED STATES CODE SERVICE
Copyright © 2002 Matthew Bender & Company, Inc.,
All rights reserved
FEDERAL RULES OF CIVIL PROCEDURE
V. DEPOSITIONS AND DISCOVERY
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
(a) Required Disclosures; Methods to Discover Additional Matter.
(1) Initial Disclosures. Except in categories of proceedings specified in Rule
26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must,
without awaiting a discovery request, provide to other parties:
(A) the name and, if known, the address and telephone number of each individual
likely to have discoverable information that the disclosing party may use to support its
claims or defenses, unless solely for impeachment, identifying the subjects of the
information;
(B) a copy of, or a description by category and location of, all documents, data
compilations, and tangible things that are in the possession, custody, or control of the
party and that the disclosing party may use to support its claims or defenses, unless solely
for impeachment;
(C) a computation of any category of damages claimed by the disclosing party,
making available for inspection and copying as under Rule 34 the documents or other
evidentiary material, not privileged or protected from disclosure, on which such
computation is based, including materials bearing on the nature and extent of injuries
suffered; and
(D) for inspection and copying as under Rule 34 any insurance agreement under
which any person carrying on an insurance business may be liable to satisfy part or all of
a judgment which may be entered in the action or to indemnify or reimburse for
payments made to satisfy the judgment.
(E) The following categories of proceedings are exempt from initial disclosure under
Rule 26(a)(1):
(i) an action for review on an administrative record;
(ii) a petition for habeas corpus or other proceeding to challenge a criminal
conviction or sentence;
(iii) an action brought without counsel by a person in custody of the United States, a
state, or a state subdivision;
(iv) an action to enforce or quash an administrative summons or subpoena;
(v) an action by the United States to recover benefit payments;
(vi) an action by the United States to collect on a student loan guaranteed by the
65
United States;
(vii) a proceeding ancillary to proceedings in other courts; and
(viii) an action to enforce an arbitration award.
These disclosures must be made at or within 14 days after the Rule 26(f) conference
unless a different time is set by stipulation or court order, or unless a party objects during
the conference that initial disclosures are not appropriate in the circumstances of the
action and states the objection in the Rule 26(f) discovery plan. In ruling on the objection,
the court must determine what disclosures--if any--are to be made, and set the time for
disclosure. Any party first served or otherwise joined after the Rule 26(f) conference
must make these disclosures within 30 days after being served or joined unless a different
time is set by stipulation or court order. A party must make its initial disclosures based
on the information then reasonably available to it and is not excused from making its
disclosures because it has not fully completed its investigation of the case or because it
challenges the sufficiency of another party's disclosures or because another party has not
made its disclosures.
(2) Disclosure of Expert Testimony.
(A) In addition to the disclosures required by paragraph (1), a party shall disclose to
other parties the identity of any person who may be used at trial to present evidence under
Rules 702, 703, or 705 of the Federal Rules of Evidence.
(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with
respect to a witness who is retained or specially employed to provide expert testimony in
the case or whose duties as an employee of the party regularly involve giving expert
testimony, be accompanied by a written report prepared and signed by the witness. The
report shall contain a complete statement of all opinions to be expressed and the basis and
reasons therefor; the data or other information considered by the witness in forming the
opinions; any exhibits to be used as a summary of or support for the opinions; the
qualifications of the witness, including a list of all publications authored by the witness
within the preceding ten years; the compensation to be paid for the study and testimony;
and a listing of any other cases in which the witness has testified as an expert at trial or
by deposition within the preceding four years.
(C) These disclosures shall be made at the times and in the sequence directed by the
court. In the absence of other directions from the court or stipulation by the parties, the
disclosures shall be made at least 90 days before the trial date or the date the case is to be
ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the
same subject matter identified by another party under paragraph (2)(B), within 30 days
after the disclosure made by the other party. The parties shall supplement these
disclosures when required under subdivision (e)(1).
(3) Pretrial Disclosures. In addition to the disclosures required by Rule 26(a)(1) and (2),
a party must provide to other parties and promptly file with the court the following
information regarding the evidence that it may present at trial other than solely for
impeachment:
(A) the name and, if not previously provided, the address and telephone number of
each witness, separately identifying those whom the party expects to present and those
whom the party may call if the need arises;
(B) the designation of those witnesses whose testimony is expected to be presented by
means of a deposition and, if not taken stenographically, a transcript of the pertinent
66
portions of the deposition testimony; and
(C) an appropriate identification of each document or other exhibit, including
summaries of other evidence, separately identifying those which the party expects to
offer and those which the party may offer if the need arises.
Unless otherwise directed by the court, these disclosures must be made at least 30 days
before trial. Within 14 days thereafter, unless a different time is specified by the court, a
party may serve and promptly file a list disclosing (i) any objections to the use under
Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(B), and (ii)
any objection, together with the grounds therefor, that may be made to the admissibility
of materials identified under Rule 26(a)(3)(C). Objections not so disclosed, other than
objections under Rules 402 and 403 of the Federal Rules of Evidence, are waived unless
excused by the court for good cause.
(4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rules
26(a)(1) through (3) must be made in writing, signed, and served.
(5) Methods to Discover Additional Matter. Parties may obtain discovery by one or
more of the following methods: depositions upon oral examination or written questions;
written interrogatories; production of documents or things or permission to enter upon
land or other property under Rule 34 or 45(a)(1)(C), for inspection and other purposes;
physical and mental examinations; and requests for admission.
(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in
accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, that
is relevant to the claim or defense of any party, including the existence, description,
nature, custody, condition, and location of any books, documents, or other tangible things
and the identity and location of persons having knowledge of any discoverable matter.
For good cause, the court may order discovery of any matter relevant to the subject
matter involved in the action. Relevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the discovery of admissible
evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and
(iii).
(2) Limitations. By order, the court may alter the limits in these rules on the number of
depositions and interrogatories or the length of depositions under Rule 30. By order or
local rule, the court may also limit the number of requests under Rule 36. The frequency
or extent of use of the discovery methods otherwise permitted under these rules and by
any local rule shall be limited by the court if it determines that: (i) the discovery sought is
unreasonably cumulative or duplicative, or is obtainable from some other source that is
more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has
had ample opportunity by discovery in the action to obtain the information sought; or (iii)
the burden or expense of the proposed discovery outweighs its likely benefit, taking into
account the needs of the case, the amount in controversy, the parties' resources, the
importance of the issues at stake in the litigation, and the importance of the proposed
discovery in resolving the issues. The court may act upon its own initiative after
reasonable notice or pursuant to a motion under Rule 26(c).
(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this
rule, a party may obtain discovery of documents and tangible things otherwise
67
discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation
or for trial by or for another party or by or for that other party's representative (including
the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a
showing that the party seeking discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable without undue hardship to
obtain the substantial equivalent of the materials by other means. In ordering discovery of
such materials when the required showing has been made, the court shall protect against
disclosure of the mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerning the action or
its subject matter previously made by that party. Upon request, a person not a party may
obtain without the required showing a statement concerning the action or its subject
matter previously made by that person. If the request is refused, the person may move for
a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in
relation to the motion. For purposes of this paragraph, a statement previously made is (A)
a written statement signed or otherwise adopted or approved by the person making it, or
(B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof,
which is a substantially verbatim recital of an oral statement by the person making it and
contemporaneously recorded.
(4) Trial Preparation: Experts.
(A) A party may depose any person who has been identified as an expert whose
opinions may be presented at trial. If a report from the expert is required under
subdivision (a)(2)(B), the deposition shall not be conducted until after the report is
provided.
(B) A party may, through interrogatories or by deposition, discover facts known or
opinions held by an expert who has been retained or specially employed by another party
in anticipation of litigation or preparation for trial and who is not expected to be called as
a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional
circumstances under which it is impracticable for the party seeking discovery to obtain
facts or opinions on the same subject by other means.
(C) Unless manifest injustice would result, (i) the court shall require that the party
seeking discovery pay the expert a reasonable fee for time spent in responding to
discovery under this subdivision; and (ii) with respect to discovery obtained under
subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to
pay the other party a fair portion of the fees and expenses reasonably incurred by the
latter party in obtaining facts and opinions from the expert.
(5) Claims of Privilege or Protection of Trial Preparation Materials. When a party
withholds information otherwise discoverable under these rules by claiming that it is
privileged or subject to protection as trial preparation material, the party shall make the
claim expressly and shall describe the nature of the documents, communications, or
things not produced or disclosed in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the applicability of the
privilege or protection.
(c) Protective Orders. Upon motion by a party or by the person from whom discovery is
sought, accompanied by a certification that the movant has in good faith conferred or
68
attempted to confer with other affected parties in an effort to resolve the dispute without
court action, and for good cause shown, the court in which the action is pending or
alternatively, on matters relating to a deposition, the court in the district where the
deposition is to be taken may make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following:
(1) that the disclosure or discovery not be had;
(2) that the disclosure or discovery may be had only on specified terms and conditions,
including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that
selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the disclosure or
discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the
court;
(6) that a deposition, after being sealed, be opened only by order of the court;
(7) that a trade secret or other confidential research, development, or commercial
information not be revealed or be revealed only in a designated way; and
(8) that the parties simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court.
If the motion for a protective order is denied in whole or in part, the court may, on such
terms and conditions as are just, order that any party or other person provide or permit
discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in
relation to the motion.
(d) Timing and Sequence of Discovery. Except in categories of proceedings exempted
from initial disclosure under Rule 26(a)(1)(E), or when authorized under these rules or by
order or agreement of the parties, a party may not seek discovery from any source before
the parties have conferred as required by Rule 26(f). Unless the court upon motion, for
the convenience of parties and witnesses and in the interests of justice, orders otherwise,
methods of discovery may be used in any sequence, and the fact that a party is
conducting discovery, whether by deposition or otherwise, does not operate to delay any
other party's discovery.
(e) Supplementation of Disclosures and Responses. A party who has made a disclosure
under subdivision (a) or responded to a request for discovery with a disclosure or
response is under a duty to supplement or correct the disclosure or response to include
information thereafter acquired if ordered by the court or in the following circumstances:
(1) A party is under a duty to supplement at appropriate intervals its disclosures under
subdivision (a) if the party learns that in some material respect the information disclosed
is incomplete or incorrect and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in
writing. With respect to testimony of an expert from whom a report is required under
subdivision (a)(2)(B) the duty extends both to information contained in the report and to
information provided through a deposition of the expert, and any additions or other
69
changes to this information shall be disclosed by the time the party's disclosures under
Rule 26(a)(3) are due.
(2) A party is under a duty seasonably to amend a prior response to an interrogatory,
request for production, or request for admission if the party learns that the response is in
some material respect incomplete or incorrect and if the additional or corrective
information has not otherwise been made known to the other parties during the discovery
process or in writing.
(f) Conference of Parties; Planning for Discovery. Except in categories of proceedings
exempted from initial disclosure under Rule 26(a)(1)(E) or when otherwise ordered, the
parties must, as soon as practicable and in any event at least 21 days before a scheduling
conference is held or a scheduling order is due under Rule 16(b), confer to consider the
nature and basis of their claims and defenses and the possibilities for a prompt settlement
or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(1),
and to develop a proposed discovery plan that indicates the parties' views and proposals
concerning:
(1) what changes should be made in the timing, form, or requirement for disclosures
under Rule 26(a), including a statement as to when disclosures under Rule 26(a)(1) were
made or will be made;
(2) the subjects on which discovery may be needed, when discovery should be
completed, and whether discovery should be conducted in phases or be limited to or
focused upon particular issues;
(3) what changes should be made in the limitations on discovery imposed under these
rules or by local rule, and what other limitations should be imposed; and
(4) any other orders that should be entered by the court under Rule 26(c) or under Rule
16(b) and (c).
The attorneys of record and all unrepresented parties that have appeared in the case are
jointly responsible for arranging the conference, for attempting in good faith to agree on
the proposed discovery plan, and for submitting to the court within 14 days after the
conference a written report outlining the plan. A court may order that the parties or
attorneys attend the conference in person. If necessary to comply with its expedited
schedule for Rule 16(b) conferences, a court may by local rule (i) require that the
conference between the parties occur fewer than 21 days before the scheduling
conference is held or a scheduling order is due under Rule 16(b), and (ii) require that the
written report outlining the discovery plan be filed fewer than 14 days after the
conference between the parties, or excuse the parties from submitting a written report and
permit them to report orally on their discovery plan at the Rule 16(b) conference.
(g) Signing of Disclosures, Discovery Requests, Responses, and Objections.
(1) Every disclosure made pursuant to subdivision (a)(1) or subdivision (a)(3) shall be
signed by at least one attorney of record in the attorney's individual name, whose address
shall be stated. An unrepresented party shall sign the disclosure and state the party's
address. The signature of the attorney or party constitutes a certification that to the best
of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the
disclosure is complete and correct as of the time it is made.
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(2) Every discovery request, response, or objection made by a party represented by an
attorney shall be signed by at least one attorney of record in the attorney's individual
name, whose address shall be stated. An unrepresented party shall sign the request,
response, or objection and state the party's address. The signature of the attorney or party
constitutes a certification that to the best of the signer's knowledge, information, and
belief, formed after a reasonable inquiry, the request, response, or objection is:
(A) consistent with these rules and warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law;
(B) not interposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation; and
(C) not unreasonable or unduly burdensome or expensive, given the needs of the case,
the discovery already had in the case, the amount in controversy, and the importance of
the issues at stake in the litigation.
If a request, response, or objection is not signed, it shall be stricken unless it is signed
promptly after the omission is called to the attention of the party making the request,
response, or objection, and a party shall not be obligated to take any action with respect
to it until it is signed.
(3) If without substantial justification a certification is made in violation of the rule, the
court, upon motion or upon its own initiative, shall impose upon the person who made the
certification, the party on whose behalf the disclosure, request, response, or objection is
made, or both, an appropriate sanction, which may include an order to pay the amount of
the reasonable expenses incurred because of the violation, including a reasonable
attorney's fee.
HISTORY: (Amended March 19, 1948; July 1, 1963; July 1, 1966; July 1, 1970; Aug.
1, 1980; Aug. 1, 1983; Aug. 1, 1987; Dec. 1, 1993.)
(As amended Dec. 1, 2000.)
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Issued: July 15, 1998
INDIVIDUAL PRACTICES OF JUDGE DENNY CHIN
Unless otherwise ordered by Judge Chin, matters before Judge Chin shall be
conducted in accordance with the following practices:
1. Communications With Chambers
A.Letters. Except as otherwise provided below, communications with chambers
shall be by letter, with copies simultaneously delivered to all counsel. Copies of
correspondence between counsel shall not be sent to the Court.
B. Telephone Calls. Except as provided in Paragraph 1(D) below, telephone calls
to chambers are permitted only in emergency situations requiring immediate attention. In
such situations only, call chambers at 212-805-0200.
C. Faxes. Faxes to chambers are permitted only if copies are also simultaneously
faxed or delivered to all counsel. No document longer than five pages may be faxed
without prior authorization. Do not follow with hard copy. The fax number is 212-8057906.
D.Docketing, Scheduling, and Calendar Matters. For docketing, scheduling and
calendar matters, call David Tam at 212-805-0096 between 9A.M. and 5P.M.
E. Requests for Adjournments or Extensions of Time. All requests for
adjournments or extensions of time must state (1) the original date, (2) the number of
previous requests for adjournment or extension, (3) whether these previous requests were
granted or denied, and (4) whether the adversary consents, and, if not, the reasons given
by the adversary for refusing to consent. If the requested adjournment or extension affects
any other scheduled dates, a proposed Revised Scheduling Order (reflecting only
business days) must be attached. If the request is for an adjournment of a court
appearance, absent an emergency it shall be made at least 48 hours prior to the scheduled
appearance.
2. Motions
A.Pre-Motion Conferences in Civil Cases. For discovery motions, follow Local
Civil Rule 37.2. For motions other than discovery motions, a pre-motion conference with
the Court is required before making any motion, except motions involving persons in
custody, motions for reargument, and motions for temporary restraining orders or
preliminary injunctions. To arrange a pre-motion conference, the moving party shall
submit a letter not to exceed three pages in length setting forth the basis for the
anticipated motion.
B. Courtesy Copies. Courtesy copies of all motion papers, marked as such, should
72
be submitted for chambers.
C. Memoranda of Law. Unless prior permission has been granted, memoranda of
law in support of and in opposition to motions are limited to 25 pages, and reply
memoranda are limited to 10 pages. Memoranda of 10 pages or more shall contain a table
of contents.
D.Filing of Motion Papers. Motion papers shall be filed promptly after service.
E. Oral Argument on Motions. Parties may request oral argument by letter at the
time theft moving or opposing or reply papers are filed. The Court will determine
whether argument will be heard and, if so, will advise counsel of the argument date.
3. Pretrial Procedures
A.Joint Pretrial Orders in Civil Cases. Unless otherwise ordered by the Court,
within 30 days from the date for the completion of discovery in a civil case, the parties
shall submit to the Court for its approval a joint pretrial order, which shall include the
following:
i. The full caption of the action.
ii. The names, addresses (including firm names), and telephone and fax numbers
of trial counsel.
iii. A brief statement by plaintiff as to the basis of subject matter jurisdiction, and
a brief statement by each other party as to the presence or absence of subject matter
jurisdiction. Such statements shall include citations to all statutes relied on and relevant
facts as to citizenship and jurisdictional amount.
iv. A brief summary by each party of the claims and defenses that party has
asserted which remain to be tried, without recital of evidentiary matter but including
citations to all statutes relied on. Such summaries shall identify all claims and defenses
previously asserted which are not to be tried.
v. A statement by each party as to whether the case is to be tried with or without a
jury, and the number of trial days needed.
vi. A statement as to whether or not all parties have consented to trial of the case
by a magistrate judge (without identifying which parties have or have not so consented).
vii. Any stipulations or agreed statements of fact or law which have been agreed
to by all parties.
viii. A statement by each party as to the witnesses whose testimony is to be
offered in its case in chief, indicating whether such witnesses will testify in person or by
deposition.
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ix.A designation by each party of deposition testimony to be offered in its case in
chief, with any cross-designations and objections by any other party.
x. A list by each party of exhibits to be offered in its case in chief, with one star
indicating exhibits to which no party objects on grounds of authenticity, and two stars
indicating exhibits to which no party objects on any ground.
B. Filings Prior to Trial in Civil Cases. Unless otherwise ordered by the Court,
each party shall file, 15 days before the date of commencement of trial if such a date has
been fixed, or 30 days after the filing of the final pretrial order if no trial date has been
fixed:
i. In jury cases, requests to charge and proposed voir dire questions. When
feasible, proposed jury charges should also be submitted on a 3.5” diskette in
WordPerfect version 5.1 or higher format;
ii. In nonjury cases, a statement of the elements of each claim or defense involving
such party, together with a summary of the facts relied upon to establish each element;
iii. In all cases, motions addressing any evidentiary or other issues which should
be resolved in limine and
iv.
In any case where such party believes it would be useful, a pretrial memorandum.
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Issued: October 20, 2000
Individual Rules and Procedures
Judge Shira A. Scheindlin
Chambers
United States District Court
Southern District of New York
500 Pearl Street - Room 1050
New York, New York 10007
(212) 805-0246 (Chambers)
(212) 805-7920 (Fax)
Deputv Law Clerk
Jim Reily
(212) 805-0120
Courtroom
12C
INDEX
GENERAL MATTERS
Procedural Rules
Communications
Filing of Papers
Extensions or Adjournments
Other Matters
2
2
2
2
3
MOTION RULES AT A GLANCE
3
MOTION RULES & PROCEDURES
Pre-motion Conference
Motions not Requiring a Pre-motion Conference
Filing and Service
Return Dates
Oral Argument
Memoranda of Law
Affidavits
Summary Judgment Motions
Orders to Show Cause
Failure of the Court to Decide a Motion
3
3
4
4
5
5
5
5
5
5
PRETRIAL & TRIAL RULES & PROCEDURES
Pretrial Conferences (Initial Case Management
Conference)
Discovery
RICO Statements
Pretrial Orders and Submissions
Trial
Related Cases
Default Judgments
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6
6
6
7
8
9
9
GENERAL MATTERS
Procedural Rules
The Court’s procedures are governed by the Federal Rules of Civil Procedure, the
Local Rules of the Southern District, and the rules set forth below. Counsel should not
call Chambers with procedural questions.
Communications
Telephone calls to Chambers should be made only for urgent matters requiring the
Court’s immediate attention. Telephone calls from attorneys will be accepted in
Chambers between the hours of 9:30 a.m. and 10:30 a.m. and 4:30 p.m. and 5:30 p.m. In
all other matters, communications to the Court should be by letter, which must identify
the name and docket number of the case, be marked with the initials of the judge (SAS),
contain the writer’s business address and telephone number, be signed by the attorney
responsible for the matter, and state the manner in which the letter was served on all other
counsel. Fax transmissions exceeding three pages will not be accepted without prior
approval by Chambers. Scheduling of all calendar matters, except for requests for
adjournments which must be made in writing, should be directed to Deputy Law Clerk,
Jim Reily, at (212) 805-0120.
Copies of all communications to the Court must be sent to adversaries and must reflect
the manner of delivery to adversaries (e.g., “By Hand,” “By Express Mail”). Any
communication that is delivered to an adversary by means other than the one used to
deliver it to the Court must contain a statement of why such other method was used.
Filing of Papers
No original documents will be accepted in Chambers. All stipulations and orders,
including consent orders, orders to show cause, preliminary injunctions, and temporary
restraining orders, shall be brought to the Orders Clerk (500 Pearl Street, Cashier’s
Office). Judgments shall be presented to the Judgment Clerk (500 Pearl Street, Main
Lobby). A courtesy copy of all papers (excluding discovery requests and responses) filed
with the Clerk, including the complaint and the answer, should be submitted to the Mail
Center (Room 870) for transmittal to Chambers (Room 1050). Only documents with
original signatures will be accepted for filing.
Extensions or Adjournments
Extensions and adjournments of Court-imposed dates and deadlines will be granted
only for compelling reasons. The Court’s permission is required to extend or adjourn
Court-imposed dates and deadlines. Requests for adjournments or extensions must be in
writing, not by telephone, with copies sent to all counsel. Such requests must set forth the
relief sought, the number and disposition of prior requests, and whether consent of all
affected parties has been obtained, and must be received in Chambers by noon, at least
two days before the scheduled conference. All adjournment requests must be
accompanied by a proposed order reflecting the requested adjournment/extension. For
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example, if your request will affect the dates set forth in the Scheduling Order entered at
the Rule 16 conference, you must advise the Court of those dates and submit a proposed
Order setting forth the requested new schedule. Such requests may be faxed to Chambers,
without prior permission from the Court, if limited to one single-spaced page and one
proposed order. When adjournments are granted, it is upon the condition that the party
requesting the adjournment notify all other parties of the new schedule/date.
Other Matters
Citations to New York cases must include citations to New York Supplement, and
citations to Supreme Court cases must include citations to the United States Reports.
Citations to cases not available in U.S. Reports, Federal Reporter, or Federal Supplement
should be accompanied by copies of the cases cited.
MOTION RULES AT A GLANCE
Motion Returnable:
Oral Argument:
Special Filing Rules:
Courtesy Copies to Chambers:
Any Court day at noon (the fully submit day)
Upon request of Court
Yes
Yes, via the Mail Center (Room 870)
MOTION RULES & PROCEDURES
Pre-motion Conference
Before bringing any motion, a party must write to Chambers to request a pre-motion
conference, with a copy to opposing counsel, except in the circumstances described
below. This letter shall be submitted at least seven business days prior to the proposed
conference. It must explain the grounds for the motion and shall be no more than three
pages in length. Within three business days after receipt of the letter, an adversary
wishing to oppose the motion must submit a written response with a courtesy copy to
Chambers. This response shall also be limited to three pages. With regard to motions for
sanctions made pursuant to Fed. R. Civ. P. 11, a moving party must wait until the 21-day
“safe harbor” period provided for in Rule 11 has expired before sending its pre-motion
letter to Chambers.
Motions will be resolved at the pre-motion conference to the extent possible. If papers
are found to be necessary, the issues to be considered will be defined and a briefing
schedule set. Parties should not submit opposition to a motion for reconsideration unless
otherwise directed by the Court.
A pending summary judgment motion cancels any previously scheduled status
conference unless the parties are notified otherwise by Chambers. A new conference date
will be set by the Court after the pending motion is decided. Conferences are not
cancelled by other motions such as motions to dismiss.
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Motions not Requiring a Pre-Motion Conference
These rules do not apply to applications for temporary restraining orders or for
preliminary injunctions, motions involving persons in custody, motions for reargument,
motions for reduction of sentence, pro hac vice admissions, and applications for
attorney’s fees.
These rules also do not apply to a motion to dismiss in lieu of an answer, a motion to
remand, or motions to confirm or compel arbitration. Before a party brings one of these
four motions, the parties must exchange letters, but should not submit them to the Court.
The parties should attempt to eliminate the need for these motions based on this exchange
of letters. (It must be recognized that leave to amend a complaint will be freely granted.)
However, where any such motion is eventually made, the moving party must certify that
pre-motion letters were exchanged.
If a motion to amend a complaint is unopposed or is made within the period prescribed
by Fed. R. Civ. P. 15(a), then the moving party need not comply with these rules, but
should submit a letter and a proposed order to the Court. If a motion to amend a
complaint is made beyond the period prescribed by Rule 15(a) and the motion is opposed,
then the parties must comply with these rules.
A party making a pro hac vice motion must first consult with its adversaries to
determine if there is any opposition to the motion. If there is no opposition, the motion
should be made by means of a short letter, sent to Chambers, enclosing a proposed order.
Parties are reminded that a $25 fee must be paid to the Cashier’s Office with each pro
hac vice admission.
Habeas corpus petitions, in forma pauperis motions and motions in social security
cases may be filed with the Clerk’s Office without a pre-motion conference.
Filing and Service
In compliance with the dates set forth in the pre-motion conference or otherwise, the
party making the motion should serve, but not file, its motion and all relevant supporting
papers (e.g., affidavits and briefs) on the adversary and should send a courtesy copy to
Chambers. The responding party shall then serve two copies (an original eventually to be
filed with the Court and a copy for opposing counsel) of its opposition papers and any
cross-motions on the moving party and should send a courtesy copy to Chambers. After
the moving party receives these papers, it shall serve reply papers, if any, on opposing
counsel and submit a courtesy copy to Chambers. Once the motion is fully briefed, the
moving party must file the complete set of original papers with the Clerk’s Office. This
responsibility encompasses any cross-motions made by the nonmoving party. When the
papers are filed, the moving party must also send a cover letter to Chambers listing all of
the papers filed as well as the date of the pre-motion conference. A copy of this cover
letter should be sent to the nonmoving party.
The parties are responsible for rescheduling the dates on which they will serve each
other with papers so long as it does not affect the “fully submit” date previously
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established by the Court.. The Court does not need to know of or approve alterations to
the dates on which the parties intend to serve each other. The Court should be notified
only if(l) the parties cannot agree on dates to serve one another, or (2) if the parties wish
to change the final submission date set by the Court for the motion.
The above-described procedure is to be used in all civil cases except pro se cases,
habeas corpus actions, pro hac vice admissions, in forma pauperis motions, and
temporary restraining orders. Prose litigants must file all motions and opposition/reply
papers with the Pro Se Office, 500 Pearl Street, Room 230, New York, New York 10007.
Copies of all motions and supporting papers must be served on the moving party’s
adversaries, and courtesy copies must be sent to Chambers. Original motion papers must
be filed with the Clerk’s Office and may be filed when served.
Return Dates
Motions are returnable on any court day at noon. Scheduling will be determined by the
Federal Rules of Civil Procedure and the Local Rules, unless otherwise directed by the
Court at the pre-motion conference.
Oral Argument
The Court will request oral argument if so desired. The Court will also consider a
request by either party for oral argument. Counsel will ordinarily be limited to 15 minutes
of argument, and counsel should assume that the Court has read and is familiar with the
papers. Unless otherwise ordered by the Court, argument will not be heard in pro se
matters.
Memoranda of Law
All motions and cross-motions must be accompanied by a memorandum of law. The
memorandum of law shall not exceed 25 double-spaced pages, and any memorandum in
excess of 10 pages shall include a table of contents and a table of authorities. Exhibits
must be tabbed and indexed. Reply memoranda may not exceed 10 double-spaced pages.
Sur-replies will not be accepted unless permitted by the Court in advance. These page
limits do not apply to memoranda submitted in reference to a motion for reargument.
Such memoranda shall not exceed 10 pages.
Affidavits
Affidavits submitted in support of or in opposition to a motion may not exceed ten
double-spaced pages and may include no more than fifteen exhibits. When at all possible,
only the relevant parts of an exhibit should be included in an affidavit. A party may not
submit more than five affidavits in support of or in opposition to a motion.
Summary Judgment Motions
On summary judgment motions, movant’s Local Rule 56.1 statement must present each
asserted fact in an individually numbered paragraph that details and cites the
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documentary support for that assertion (e.g., deposition, affidavit, letter, etc.). The
opponent’s response must minor the movant’s statement by admitting and/or denying all
of movant’s assertions in similarly numbered paragraphs, specifically indicating the
relevant documentary support. No exhibits shall be annexed to Rule 56.1 statements.
Orders to Show Cause
As with any order, all applications for orders to show cause and temporary restraining
orders must be brought to the Orders and Appeals Clerk for approval as to form and then
to Chambers. Unless special cause is shown, an order to show cause will not be issued
unless the party requesting such an order has provided reasonable notice to all adversaries
and all adversaries have had an opportunity to appear and oppose the application.
Failure of the Court to Decide a Motion
If a motion is not decided within 60 days of the time it is fully submitted, counsel for
the movant shall send a letter to the Court to call this fact to the Court’s attention.
PRETRIAL & TRIAL RULES & PROCEDURES
Pretrial Conferences (Initial Case Management Conference)
a. Criminal Cases
Counsel in criminal cases are directed to proceed to Chambers after their appearance in
Part I and the assignment of the case to Judge Scheindlin. An initial pretrial conference
will be scheduled at that time.
b. Civil Cases
Approximately two months after the complaint in a civil case has been filed, a pretrial
conference will be called, usually by written notice. Pretrial status conferences may be
suggested in writing by the parties, or called by the Court, at any time. Counsel must
bring to the first pretrial conference a proposed Scheduling Order (a written discovery
plan) that lists, among other things, depositions to be taken. Counsel must also be
prepared to discuss any contemplated motions and settlement. A form for the Scheduling
Order can be obtained from Chambers.
c. Appearances
An attorney with knowledge of the case and authority to engage in settlement
discussions must appear at all conferences with the Court.
Discovery
a. Discovery Rules
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The Court has prepared Suggested Rules of Discovery Practice concerning depositions
and document production. The parties are urged to take these Suggested Rules into
consideration when conducting depositions and requesting documents and prior to
submitting discovery disputes to the Court. A copy of the Suggested Rules can be
obtained from Chambers.
b. Discovery Motions
No motions regarding discovery disputes are permitted. Rather, if such a dispute cannot
be resolved by the parties, a party should submit a letter not exceeding two double-spaced
pages pursuant to Local Rule 3 7.3(c). Any letter submitted by opposing counsel should
also be limited to two double-spaced pages. The Court will hear argument from counsel
promptly after receipt of these submissions.
RICO Statements
Within 20 days of filing a claim under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1961, the party asserting the RICO claim must
file with the Court and serve upon the opposing party a RICO Statement. In preparing the
RICO statement, counsel should refer to and follow the Instructions for Filing a Rico
Statement, which can be obtained from Chambers.
Pretrial Orders and Submissions
a. Joint Pretrial Orders
Counsel are required to prepare and submit a Joint Pretrial Order by the date set at the
initial pretrial conference. In preparing the order, counsel should refer to and follow the
Court’s Joint Pretrial Order form, which can be obtained from Chambers. This order is
to be a joint submission, prepared by all parties and/or counsel. The parties should
promptly draft and exchange proposed Joint Pretrial Orders and should then meet by
telephone or in person to finalize the order and submit it to the Court (the original and
one courtesy copy to Chambers). If the parties cannot agree on a particular point, they
may submit separate proposals, solely with respect to that point. The remainder of the
order should be a joint submission. If the Joint Pretrial Order is prepared on a computer,
an electronic copy must also be submitted to Chambers on a 3-1/2” IBM-formatted
diskette in Corel WordPerfect 8 format.
Where a pro se plaintiff is incarcerated, the defendant is responsible for preparing the
first draft of the Joint Pretrial Order.
b. Jury Trials
Injury trials, all parties should prepare jointly a list of (l) voir dire questions to be asked
of prospective jurors on which they agree; (2) requests to charge on which they agree;
and (3) a proposed verdict sheet on which they agree.
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If any party objects to another party’s requested voir dire questions, requests to charge
or proposed verdict sheet, that party should (1) set forth the grounds for that objection
and (2) propose an alternative. Objections to proposed voir dire questions or requests to
charge must include citation to authority.
The joint list of voir dire questions, requests to charge and proposed verdict sheet
should be presented in one document, and the parties’ objections and alternative
proposals should be presented in another. Each party must also submit a Trial
Memorandum of Law addressed to each issue of law that the party expects to arise at or
before trial.
All three documents must be submitted to the Court along with the Joint Pretrial Order.
If requests to charge, verdict sheets and trial briefs are prepared on a computer, electronic
copies must also be submitted on 3-1/2” IBM-formatted diskettes in Corel WordPerfect 8
format.
c. Bench Trials and Hearings
Unless otherwise instructed, counsel are required to submit proposed findings of fact
and conclusions of law in conjunction with the Joint Pretrial Order. The parties should
also submit trial memoranda of law that identify the issues, summarize facts and
applicable law, and address any evidentiary issues. These documents should be submitted
at least one week before the scheduled trial date. If the trial memoranda of law are
prepared on computers, electronic copies must also be submitted on 3-1/2” IBMformatted diskettes in Corel WordPerfect 8 format.
d. Duty of Disclosure
All counsel are reminded that Rules 26(a)(2) and 26(a)(3) of the Federal Rules of Civil
Procedure are in effect in this District and will be strictly enforced by this Court.
Specifically, Fed. R. Civ. P. 26(aX2) requires that 90 days prior to the trial date or the
date the case is to be ready for trial, a party must identify any expert it expects to call at
trial and must produce a “written report prepared and signed” by the expert witness. “The
report shall contain a complete statement of all opinions to be expressed and the basis and
reasons therefore; the data or other information considered by the witness in forming the
opinions; any exhibits to be used as a summary of or support for the opinions,” as well as
the qualifications, compensation and prior testimony of the witness. Any expert offered
as a trial witness solely to rebut another party’s expert must be identified, with the
required accompanying disclosure, within 30 days after the adversary’s expert disclosure.
Fed. R. Civ. P. 26(a)(3) requires that 30 days prior to trial, each party must provide the
following information:
a.
the name, address and telephone number of each witness a party intends to call
at trial “separately identifying those whom the party may call if the need
arises”;
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b.
deposition testimony expected to be used at trial;
c.
“an appropriate identification of each document or other exhibit, including
summaries of other evidence.”
Within 14 days after this identification, an adversary must serve and file any
objections as to the admissibility of the documents, depositions or witnesses identified
pursuant to the Rule. “Objections not so disclosed, other than objections under Rules 402
and 403 of the Federal Rules of Evidence, shall be deemed waived unless excused by the
Court for good cause shown” (emphasis added).
A FAILURE TO COMPLY WITH THESE RULES WILL RESULT IN
PRECLUSION. See Fed. R. Civ. P. 37(c)(1).
Trial
a. Timing
Counsel must be prepared to proceed to trial on forty-eight (48) hours’ telephone notice
once the Joint Pretrial Order has been filed. Any party with a scheduling problem or
conflict must bring it to the Court’s attention by letter at the time the Joint Pretrial Order
is filed. If such scheduling problem or conflict arises after the Joint Pretrial Order is filed,
the Court must be notified by letter immediately.
b. Procedure During Trial
Counsel proceeding to trial before Judge Scheindlin should obtain a copy of her rules
on the Conduct of Counsel at Trial, which can be obtained from Chambers.
Related Cases
After an action has been accepted as related to a prior filing, all future court papers and
correspondence must contain the docket number of the new filing, as well as the docket
number of the case to which it is related (e.g., 00 Civ. 1234 [rel. 99 Civ. 4321]).
Default Judgments
Applications for default judgments will not be accepted absent the following:
(1) A description of the nature of the claim;
(2) An affidavit representing that this Court has subject matter
jurisdiction over the action;
(3) An affidavit representing that this Court has personal jurisdiction
over the defendant;
83
(4) An affidavit representing that the defendant is not an infant or an
incompetent;
(5)
A certificate of default stating that the defendant was properly served and
failed to answer/appear, signed and stamped by the Clerk of the Court. (If the
defendant did appear in the action, the plaintiff must submit an affidavit
representing that the defendant has notice of the application for default);
(6) Reasonable attorneys’ fees, usually not to exceed $2,000, if
attorneys’ fees are sought; and
(7)
All required substantiating documentation. (Generally, a copy of the complaint
satisfies (1), (2), and (3).)
If the plaintiff seeks an award of damages in the motion for default
judgment, the plaintiff must also:
(1) A request for an amount equal to or less than the principal amount demanded in
the Complaint;
(2)
Definitive information and documentation such that the amount provided for in
the proposed judgment can be calculated. (If this requirement cannot be satisfied,
a default judgment may be granted as to liability, and damages will be determined
by an inquest);
(3)
An affidavit representing that no part of the judgment sought has been paid, other
than as indicated in the motion;
(4) A request for interest on the principal amount not to exceed 9%, if interest is
sought;
(5) The calculations made in arriving at the proposed judgment
amount.
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CLASS 5: THE JUDGE’S ROLE IN SETTLEMENT
As we discussed in the last class, mounting caseloads and looming backlogs have
expanded the judge’s role to include case management. Judges are under increased
pressure to resolve cases. Settlement is one way to resolve a dispute. The judicial system
has come to rely on settlement, but is it anything more than a cheap and easy means of
clearing calendars? Owen Fiss, a critic of settlement, notes:
I recognize that judges often announce settlements not with a sense of frustration
or disappointment..., but with a sigh of relief. But this sigh should be seen for
precisely what it is: It is not a recognition that a job is done, nor an
acknowledgment that a job need not be done because justice has been secured. It
is instead based on another sentiment altogether, namely, that another case has
been “moved along,” which is true whether or not justice has been done or even
needs to be done. Or the sigh might be based on the fact that the agony of
judgment has been avoided.4
Fiss contends that the judge’s role is not “...simply to secure the peace, but to
explicate and give force to the values embodied in authoritative texts such as the
Constitution and statutes: to interpret those values and to bring reality into accord with
them. This duty is not discharged when the parties settle.”5 The readings include an
article by Carrie Menkel-Meadow that acknowledges some of the problems of settlement
noted by critics such as Fiss, but Menkel-Meadow sees potential when the settlement
process is used selectively to craft quality solutions, not simply to clear the docket.
Think about the settlements you have seen during your extemship. Has justice been
served? Has the judge voiced any concern over the fairness of the settlement?
Like it or not, in most courts, settlement is the name of the game, and judges are
4
5
Owen M. Fiss, Against Settlement 93 YALE L.J. 1073 (1984) at 1086.
1d. at 1085.
85
faced with choices regarding the role they will play in the process. There are a wide
range of views on the appropriate role of the judge in facilitating settlement. Some
judges offer the attorneys a meeting place, but otherwise disdain involvement in
settlement negotiations. Other judges aggressively pursue settlement.
Among the judges who view encouraging settlement as part of their role, there are
a range of techniques and styles. Some judges actively analyze the merits of the case,
suggest an appropriate figure, or formulate proposals not contemplated by the lawyers.
Other judges encourage compromise without endorsing a number or assessing the
strength or weakness of the respective cases. Judges may require the clients to attend the
settlement conference and some judges advocate settlement directly to the clients.
Another technique favored by some judges is meeting with each attorney separately to
discuss settlement. Other judges use more indirect means of encouraging settlement such
as setting an inexorable trial date.
A wide range of techniques are acceptable, but there are limits. The law “...does
not sanction efforts by trial judges to effect settlements through coercion.”6 In Kothe v.
Smith, the U.S. District Judge threatened the party rejecting his recommended settlement
with sanctions if they accepted a comparable settlement after the trial started. The parties
settled the case one day into the trial and the judge imposed the sanction. The appellate
court vacated the sanction as coercive. Think about other settlement techniques you have
seen judges use or heard described. Are they arguably coercive or do you see
distinctions?
Given that one of the fundamental attributes of a judge is impartiality, should we
6
Kothe v. Smith 771 F2d 667 (2nd Cir. 1985) at 669.
86
reconsider what role the judge should play in settling cases? How does active
participation in settlement negotiations affect the judge’s ability to preside impartially
over later proceedings if the settlement talks are unsuccessful? Do you think the judge
can set aside her opinion of the case formed during settlement talks? Think about
situations where the judge has strongly argued for a particular result or where facts
revealed during settlement discussions will not be admissible at trial. Does it matter
whether the trial is a jury trial or a judge trial?
87
CLASS 5: NOTES & PROBLEMS
1. Observe a Settlement Conference. If you have not had an opportunity to observe a
settlement conference at your placement, try to do so before class. Observe the role the
judge plays. Make note of the techniques your judge uses.
2. “The Verdict” Settlement Conference. We will watch a video of a settlement
conference during class. Be prepared to analyze the techniques used by the judge and to
compare the settlement conference to any you have observed at your placement and to the
conference described in Anatomy of a Settlement. Think about the criticisms of the
settlement process and the concerns regarding the judge’s role in settlement covered in
the readings. Did either scenario illustrate these concerns?
3. Plea Bargaining. The readings focus on settlement in civil cases. Many of you are
placed with judges hearing criminal cases. How does plea bargaining in criminal cases
differ from settlement? Have you noticed any limitations to the judge’s role in plea
bargaining? Judges are not permitted to coerce settlements in civil cases. Have you seen
any inducements for criminal defendants to plead guilty that you would characterize as
coercive?
88
David B. Saxe, Anatomy of a Settlement 79 Jul A.B.A.J. 52 (1993).
Reprinted by Permission of the ABA Journal.
ABA Journal
July, 1993
Fiction
*52 ANATOMY OF A SETTLEMENT
Jockeying for Position
David B. Saxe
Copyright © 1993 by the ABA Journal; David B. Saxe
AMS -- Arbitration, Mediation, Settlement or other forms of
ADV -- Advocacy & Lawyering Skills
GPR -- General Practice Approaches, Articles & Issues
As the lawyers walked hesitantly through the outer door of the judge's robing room
lugging their trial bags, they saw the judge perched at the edge of his large leather
chair at the head of the conference table, scanning the day's schedule.
"Sit down, fellas," said the judge, taking the case card from his clerk. "Julie, how
are you?"
"Fine, judge," said Julius Mandel, a veteran plaintiff's lawyer as well known for his
pugilistic style as for his numerous million-dollar verdicts. "Looks like your wife's
cooking is agreeing with you, judge," he said, noting the judge's recent increase in
girth.
"Yeah, well," said the judge. "I don't get to move around as much as I did when I
was a lawyer."
"You should join a health club, judge, or a country club, like me, and work out or
take up golf. I'll see if I can put in a word with some of my friends in Albany.
Maybe they'll start pushing on a raise for you guys again."
The judge was silent for a moment or two, trying to think of a way to respond to
Mandel's flip, disrespectful tone. The judge, though outwardly amiable, had an
intense dislike for many of the local trial lawyers who, like as not, had apartments
on Park Avenue, and yet couldn't string a proper English sentence together in a
89
memo or an affidavit. It was an internal battle that kept erupting inside him, and he
was only too aware of the strains of envy.
He kept thinking that this was a guy who probably finished near the bottom of his
class at Brooklyn Law School, but look at him now, while he couldn't even afford
to buy his daughter the home computer she needs for her homework. Suddenly the
judge's internal musing ended, and he said, "Now, Julie, you're not going to give
me as much trouble as you did last time, are you?"
Then, turning and looking directly at the defendant's lawyer sitting across from
Mandel, the judge said, "You know, this guy was impossible at trial. He battled me
on every ruling."
"That's only because you hurt me, judge," said Mandel, a small smile developing at
the corner of his mouth.
The defendant's lawyer, a large, burly man in his mid-40s, had sunk into one of the
wooden chairs opposite his adversary. For a moment or two, he listened warily to
the repartee between the judge and the plaintiff's counsel, trying to determine if the
outwardly fractious quality of the conversation contained the seeds of something
more menacing to his client's position.
The judge perceived the defense lawyer's uneasiness and realized that perhaps the
overly familiar tone used by Mandel might have conveyed to him a friendly
relationship. The judge smiled and thought to himself that this lawyer should only
know his real feelings about Mandel, and what a pleasure it would be to put the
screws to him.
"You're Charlie O'Brien," said the judge.
"I am, your honor."
"Didn't you used to try cases for Travellers?" asked the judge.
"You have a good memory, judge," said O'Brien, obviously pleased that he had
not gone unnoticed by the court.
"Anyway," said the judge, "can this be settled?"
*53 "Judge, I'm always interested in settling cases. You certainly know that,"
replied Mandel.
"Yeah, but you always look for top dollar," snarled the judge.
"That may be true, judge, but that's because I'm a top lawyer."
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"Look, Julie, let's get down to business. Whaddya looking for?"
"Judge, I just got into the case, and I haven't heard anything from the defendant."
"Your honor," said O'Brien, "I don't think it's incumbent upon me to bid against a
number I've never heard."
"You're right," said the judge. "OK, Julie, I want to stop this bullshit. If you need to
make a call, go ahead and give me a number."
"All right, judge, but wouldn't you like to know what this case is about before you
beat me up?"
"Julie, are you trying to confuse me with the facts?" the judge said with a smile.
"How could you think that, judge?"
"OK, Julie. What's this about?"
"Your honor, my client Steve Parker is a 25-year-old former stockbroker. Four
years ago, he went to see Dr. Paul Weinstein, a dermatologist, complaining of an
ulcerated sore on his tongue. The doctor treated the sore with a salve for almost
six months, and the condition worsened. It turned out that Steve has a squamous
cell carcinoma of the lip.
"He's had two major operations since then and, as a matter of fact, is undergoing
esophageal surgery today or tomorrow. There is a good chance that he might not
make it through this surgery. The cancer has spread to such an extent that the
doctors give him at most a month or two to live."
"Did you know that, Mr. O'Brien?" the startled judge asked.
"I'll concede that the situation is grave, your honor."
"All right, all right," said the judge. "Julie, what's your demand?"
"Judge, before I give you a figure, I was about to tell you where I believe the
malpractice exists."
"OK," muttered the judge, thinking to himself, "Why do all these attorneys have to
give speeches before they'll start to negotiate?"
"Your honor," said Mandel. "This doctor, who calls himself a dermatologist,
neglected my client for six months, while he was his patient; he didn't even take a
biopsy. Had he done a biopsy, the cancer could have been arrested and treated at
a much earlier point in time."
91
"For the record, your honor," said O'Brien, "my client vigorously disputes this
charge. He believes, and I think the jury will find, that his treatment was by the
book."
"Yeah," laughed Mandel. "That's if the book was called, 'How to Murder your
Patients."'
"Judge," said O'Brien, rising from his seat, "I take personal offense at that remark.
I'm not going to sit here and be insulted by that man."
"Oh, stop your crap," Mandel roared.
The judge wondered idly if he should reprimand Mandel for his informality or
O'Brien for his hypersensitivity. Instead, he nudged both of them back to a
discussion of settlement.
"Julie," the judge said, "I want a demand. Stop beating around the bush."
"Judge, my client will take--today only--$750,000. Do you have it?" he said,
looking directly at O'Brien.
"That doesn't seem terribly out of line," said the judge. "Charlie, can you meet it?"
"Judge, I'm sorry, but at this time I don't have any money on the file. It's a serious
case, but you know how it is with insurance carriers--the layers of command."
"Look," said the judge. "This case has been kicking around for a while. Let's not
bullshit each other."
"Judge," said O'Brien, "I'm trying to be very straight with the court. While we think
the case is completely defensible, we are, I'm sure, prepared to make a generous
offer."
"Well, why don't you just make that generous offer," said the judge, now clearly
exasperated. He had finally pushed Mandel to make a demand, and now this idiot
was hedging.
"I told you, your honor," said O'Brien, "I can't offer anything yet."
"This is ridiculous," said the judge. "I think we better get on with the trial."
"Let him tell you what the policy limit is," said Mandel.
"Yeah, how much are we talking about?" said the judge.
92
"One million dollars, your honor."
"One million? Is there any excess coverage?"
"Not to my knowledge, your honor."
"Well, I'm really puzzled. Here's a young man dying of cancer, and you're playing
games with me with only a million in coverage."
"Judge, I resent your implication that I'm playing games with the court," said
O'Brien.
"It's no implication, it's a clear statement," the judge lashed back. "What kind of
garbage is this? This kid will be a terribly sympathetic witness. The doctor could
be working to pay a judgment here for the rest of his life."
"And, I want to state for the record," Mandel interrupted, "that this case can be
settled within the policy limits."
"Listen, judge," said O'Brien, his voice rising. "I feel that I'm being ganged up on
here. As I said, our position is that we believe this case is completely defensible,
but we are prepared to make a serious evaluation and offer."
"I've heard that," said the judge.
"I have nothing else to say at this time, your honor," said O'Brien.
"Do you want to call your people?" said the judge, thinking that a softer touch
might work a little better.
"I don't want to mislead you, your honor," said O'Brien, "but at this juncture I'm
not sure it would do any good."
"I'm really having trouble reading you, counselor. What's wrong now?"
"Well, judge, one of the problems I'm faced with is that my client won't commit to
any settlement."
"You're kidding," said the judge. "Faced with the possibilities that exist here?" At
least, the judge thought, now he knew what was going on.
"Yes, your honor. He's very fearful that a settlement will be entered into a
computer data bank and hurt *54 him in the future."
"Do you want me to talk to him? I can be very persuasive."
"I'm well aware of your honor's abilities in that sphere," said the lawyer. "Let me
93
talk to him."
"In a few minutes, O'Brien returned and told the judge the dermatologist was
interested in speaking to him.
"Fine," said the judge to O'Brien. "OK. You, Julie, please leave. I need to speak
to him alone."
"No problem, your honor," said Mandel. "But tell him I'm looking forward to
beating his brains in when I cross-examine him."
"Your honor," said O'Brien. "I don't think we have to be subject to the rantings of
Mr. Mandel."
"Rantings?" exclaimed Mandel. "This slimy guy kills a healthy young man, and I
should go easy on him! He's not going to forget me, judge."
"Both of you, get out," roared the judge. "Bring the doctor in right away."
In the moment or two before O'Brien returned with his client, the judge received a
call from the assignment judge who pressed him on his progress toward settling the
case.
"I got two jury cases stacked up for you," the assignment judge said.
"Listen, I'm doing everything I can."
"What's the problem? There's a small policy; if I had the time to talk with those
guys I'd have it settled in no time."
The judge mumbled a few final words to his caller before hanging up. He felt
alternately depressed and annoyed at the pressure being placed on him, but he was
aware that the assignment judge controlled his assignment to the medical
malpractice complex, for which there had been keen competition by his colleagues.
He understood the message and decided to increase his efforts on the case right
away.
At that moment, O'Brien was back with his client. The judge invited them to be
seated. Dr. Weinstein had the face and skin of a man in his 20s, but carried himself
like a man worn down by stress. The judge bemoaned meeting such a
distinguished physician under these difficult circumstances and, after a moment or
two of pleasantries, got down to business.
"Doctor, I'm sure your lawyer told you why I wanted to speak to you."
"Yes, your honor."
94
"You know, doctor, you have the power to settle this case or not," the judge said.
"I'm sure if you permit your insurance carrier to enter into settlement negotiations,
we could probably wrap this thing up."
"The doctor sat there for a moment, looking down at his tie. He seemed smaller
and slighter to the judge than when he first had seen him.
"Judge," said Weinstein, handing him a bunch of documents, "can I discuss the
case with you? I mean, if you go over some of these charts with me, you'll see I
did absolutely nothing improper."
"Doctor,"said the judge, pushing the charts away. "If we have to get into the
nitty-gritty of what you did or didn't do, I might as well try the case."
"But, judge, how can I agree to settle a case where I didn't do anything wrong?"
"That's a very good question, doctor, and it deserves a serious response. You
know, listening to cases is basically what I do for a living. And over the years--let's
see, I've been doing this for more than 20 years now--I've seen juries come in with
some of the craziest verdicts. You wouldn't believe it."
The doctor squirmed in his chair.
"What I'm really saying is that by settling, you eliminate all risk. And there's a lot of
risk here, it seems to me."
"But, your honor," interrupted Weinstein, "please just read these charts; they'll
show you conclusively that my treatment was absolutely correct."
The judge felt his impatience growing. He thought for a moment of how the
assignment judge would needle him at the weekly productivity meeting to be held
in a day or two. He tried to gain eye contact with O'Brien, who was sitting just to
the right of Weinstein, but the lawyer wouldn't meet his gaze.
"Look, doctor, I'm trying to do you a favor. You know, if I settle this case, there
are five more to take its place. So it really doesn't matter to me which case I hear.
But this kid here--the plaintiff--is very sick; he may die in a month or two. He's
going to be a very sympathetic witness. And you, doctor, you only have a million in
coverage. Do you know what that means?"
"What?"
"It means that if the plaintiff wins here, the verdict in my opinion will be well over a
95
million," said the judge. "And you'll have a new partner, the plaintiff or his estate.
How are you going to feel about that?"
"I don't know, judge," said the doctor. "But I really need you to hear me out."
The judge once again tried to make eye contact with the doctor's lawyer, who
again studiously avoided the judge's approach.
"Well, yes or no, doctor. Are you interested in settling this case?"
"Your honor, I don't want you to be upset with me, but I just can't see how I can
agree to settle this case. If I settle, I may never get insurance again."
The judge, sensing defeat, thanked the doctor and asked him to leave the room,
then asked O'Brien to call Mandel back inside.
"Well, gentlemen," said the judge, "I guess I'm losing my touch."
"Judge, I'm sure you did all that was possible," said Mandel.
"I second that sentiment," said O'Brien.
"I didn't break his arm, did I?" said the judge, looking at O'Brien.
"You were very gentle," said the lawyer.
With that, the lawyers left the robing room and resumed their places at the counsel
table. A few minutes later, the judge took the bench, and the jury was brought in to
hear the judge's preliminary instructions and the lawyer's opening statements.
Then, due to the deteriorating condition of the plaintiff, who was undergoing
treatment at a hospital, Mandel read the transcript of the plaintiff's deposition to the
jury instead of calling him as a witness.
The reading was long and tedious, but detailed the relationship of the plaintiff to the
doctor, the initial visit, succeeding visits, the later biopsy, and the plaintiff's
worsening condition.
When the reading was concluded, Mandel called Weinstein as the next witness.
He walked briskly to the *55 witness chair and took the oath. The initial
questioning addressed his college and medical school education and his affiliations
with learned societies. Then the tenor of the questions took on a more ominous
tone.
"Now, doctor," said Mandel, his back toward the witness while pacing a few feet
away from the jury. "Are you board-certified?"
96
"I'm board-eligible, and I am also a member of the International Society of
Dermatologists, sir."
"Dr. Weinstein, let me ask the question again. Perhaps you didn't hear me. Are you
now board-certified in the field of dermatology?"
"I'm board-eligible and . . . ."
"Doctor," yelled Mandel. "I asked you a simple question. Can't you give me a
simple answer?"
"Objection," said the defendant's attorney. "My adversary is badgering the
witness."
"Judge, can't I get a simple answer to a simple question?" said Mandel.
"If you're having a problem with a witness, ask for my intercession," said the judge.
"You're not the judge, last time I looked. Just ask the question again."
"OK, judge. Doctor, for the third time, I ask you: Are you board-certified, I'll say
it again, board-certified, in the field of dermatology? Just answer yes or no."
The witness looked to his attorney sitting at the counsel's table for some help, but
O'Brien was gazing away.
"No," said the doctor.
"You are not board-certified, are you, doctor?" said Mandel.
"I just said I'm not," said the doctor defiantly.
"And by the way, doctor, what does it mean to be board-certified?"
"Well," said the doctor, "it means that you have taken and completed a residency
in your field of medical interest and additionally that you've passed a written
examination in that field."
"And, let's see, doctor. You've completed a residency in dermatology, haven't
you?"
"Yes."
"And, doctor, have you passed the written examination in the discipline of
dermatology in order to become board-certified in that field?"
"No, sir, I have not passed the examination."
97
"And, doctor," continued Mandel. "How many times have you taken this written
examination in dermatology?"
"Twice."
"Doctor, let me get this straight. You have flunked the written examination in
dermatology two times."
"Yes."
"Yet they still let you practice medicine?" said Mandel.
"Objection," roared O'Brien. "My adversary knows very well that a physician may
practice medicine without being board-certified."
"Yeah, but he can't hold himself out as a specialist if he can't even pass an exam in
his own field," countered Mandel.
"I'm board-eligible," piped up the doctor to no one in particular.
At that point, the judge looked up at the clock in the courtroom and noticed it was
about a quarter to one, an appropriate time to break for lunch. Just as the judge
was walking from his bench to the robing room, he beckoned to O'Brien. "Bring
your client in for a minute."
Weinstein and O'Brien were ushered into the judge's robing room, where the
atmosphere now was considerably more subdued. The doctor sat quickly, and
O'Brien took the chair next to his. The judge slouched in his chair at the head of
the table with one leg draped over the edge of the table.
"Dr. Weinstein, I want to ask you a question, and I hope you will not take it the
wrong way."
"OK," said Weinstein.
"Doctor, uh, are you Jewish?"
"Yes, I am," said Weinstein. "What's that have to do with this?"
"Well, it means that you might know a little Yiddish, right?"
"I guess so."
"Good. Doctor, do you know what the word schmuck means?"
"Uh, yes, but what does that have to do with this case?"
98
"Look, doctor, let me be blunt, and I'm doing this for your own good. With what
you just testified to, you'll be working to pay the plaintiff the rest of your life."
"I don't understand," said the doctor.
"Doctor, maybe I'm wrong, but didn't I hear you say you've flunked the written
part of the boards twice?"
"Yes," said the defendant, "but that doesn't mean I can't practice medicine or even
dermatology."
"Of course not," said the judge, "but to me, you sounded very defensive about it.
How do you think it sounded to the jury?"
"This has been very difficult for me, your honor. I'm really not used to this."
"I know, I know," said the judge. "But listen, doctor, you seem like a nice guy; and
you are a young man, too. Why not give yourself some perspective? Ask
someone--a friend or somebody else if what I'm trying to say to you isn't
reasonable. Doctor, I think I've emphasized this before. If they recover a verdict,
it's going to be a lot more than a million, your policy limit. Think it over, doctor.
That's all."
"So, you'd settle if you were me, wouldn't you?" said the doctor to the judge.
"Doctor," said the judge, "I'm not clairvoyant, but I've seen so many strange things
go on with juries that I'm inclined to urge you to give your consent to a settlement."
"Thank you, your honor." And with that the doctor and his lawyer left the robing
room.
No more than two minutes had elapsed when the judge was disturbed again by a
pounding on the robing room door.
"Your honor," said the court officer, as he poked his head through, "Mr. O'Brien
would like a word with you."
"OK, bring him in."
"Judge, I don't know what your secret is, but you did it. He gave us his consent to
settle."
"Terrific," said the judge, his face suddenly flushed with excitement. "You and
Mandel, be here at 2 p.m. sharp. Now we can really get to work."
"Thank you, your honor. See you after lunch."
99
"After lunch, the judge invited both sides into the robing room to *56 begin the
next part of the settlement process.
"OK, Julie, what'll it take to wrap this up?" the judge asked.
"I already told you, judge, the number is $750,000."
"Whaddya have on the file?" said the judge turning to O'Brien.
"Your honor, as I told you before, I believe this is a defensible case."
"Come on, judge," said Mandel. "If he's gonna continue his bullshit, let me go back
inside and destroy that little piece of shit."
"Julie, you're really out of line," said the judge.
"And, judge," said O'Brien. "I'm not going to listen to this abuse anymore. Everything
with this guy is personal. If that's the way he wants it, let's try the case."
"Listen, both of you, I'm trying to settle this case, and it's only your stupid ego,
Julie, that's keeping me from doing it. Now you too, O'Brien, let's stop the
posturing. What have you got?"
"If you gave me a chance, judge, I was going to report to you on the nature of my
conversation with the carrier."
"Mr. O'Brien," said the judge, "why must everything with you be a speech? Just tell
me. How much do you have?"
"Your honor, I have $500,000."
"Judge, we're just wasting time," said Mandel. "I gave you a figure. It's very
reasonable. This guy is way off. I'm ready to go back and try this case."
"Julie, step out for a moment, will you?"
After Mandel left the room, the judge turned to O'Brien. "You know that
$500,000 won't settle this case, don't you?"
"Judge, I resent your attitude toward me. Why don't you lean on the plaintiff a
little? If you directed as much effort toward his unreasonable demand as you have
toward me, this case would be settled."
"Hey, listen, my friend, don't tell me how to do my business," said the judge. "I've
been listening to your bullshit all day. I'm going upstairs where I can get some work
done."
100
And with that, the judge quickly left the robing room, slamming the door and
leaving the startled defense counsel to think about the error of his ways.
About an hour later, the judge decided it was time to resume settlement efforts so
he phoned his clerk to see if there had been any movement between the parties.
"Well, judge," said the clerk, "they're both sitting at the counsel table, and they
seem to be laughing at something."
"That's good," said the judge. "Put them in the robing room, and I'll be down in a
moment."
A few minutes later, the judge walked into the robing room. Both counsel were
laughing over an old war story being told by O'Brien.
"Your honor," said O'Brien. "I want you to know that if I misspoke before, I
apologize. I think this case may be getting to me a bit."
"It's getting to all of us," said the judge. "No offense taken. Now let's see if we can
get rid of this one. Julie, what's your bottom line?"
"Judge," said Mandel wearily, "I can't bargain against myself. You know what I
need; tell O'Brien to get it."
"Judge," responded O'Brien. "I told you I had $500,000 and that I thought I could
get more, but you know how carriers work."
"Well, look," said the judge. "It's 3:30 now, Mr. O'Brien; why don't you go back
to your people and try to solidify things?"
"Whatever you say, judge," said O'Brien.
"And one last thing, fellas. I think I ought to put a recommendation on this case. I
think $700,000 is the right number."
"Judge, I hear you," said Mandel, "but I don't think my client will take $700,000."
"And I don't have $700,000," chimed in O'Brien.
At the next morning's conference, the judge renewed the negotiations by looking
first to Mandel.
"So, where are we, Julie?"
"Well, judge, I was just on the phone with the attorney of record, and they've been
101
in contact with my client's family."
"Listen, Julie, any movement from the $750,000 number?"
"Well, judge, that's something I want to talk to you about. Can I talk to you
privately?"
"OK with me," said O'Brien, and left the room.
"Listen, judge," said Mandel, "there's been some snafu. The attorney of record told
me this morning that they need $800,000 to settle the case."
"Julie, what kind of shit is this? You told me $750,000."
"That's true, judge, and I had Steve's agreement on this figure. It wasn't easy. But
he's undergoing an operation today, and his parents are calling the shots."
"Listen, Julie, I want to speak to the attorney of record. Get him on the phone."
"Anything you say, your honor."
In a moment, the judge was engaged in a heated conversation with the attorney of
record, who was trying to explain the series of last-minute events that resulted in
the apparent miscommunication between the parties. Mandel stood by on the other
receiver.
"I want to tell you one thing," said the judge. "Your trial counsel speaks for you. I
communicated his demand, and that's the demand, period. You're not going to
screw this up for me."
"Your honor," replied the attorney of record. "You know we have the greatest
respect for you, but our client is adamant at $800,000."
"You didn't hear me," said the judge. "Don't lose sight of the fact that I'm still the
judge trying this case. Do you get me?"
"Your honor, I read you loud and clear. I'll speak to my client, but I'm not overly
hopeful."
"You can always reduce your fee," snarled the judge.
"Judge, can I get back to you in a moment?" said the attorney of record.
"Go ahead," said the judge in disgust, as he hung up. He motioned Mandel out of
the room and sat quietly in the robing room drinking a cup of cold coffee and
leafing through a day-old newspaper. The prospect of continuing a trial that would
last at least another three weeks depressed him.
102
Twenty minutes later, the clerk knocked on the outer door and advised the judge
that Mandel wanted a word with him.
"Send him in," sighed the judge.
"Judge, can I call the attorney of record from here? I think I may have *57 some
news for you."
"Go ahead."
Mandel dialed the number. "Ted, the judge is on the other line. Please tell him what
you just told me a couple of moments ago."
"Judge, I'm sorry to be bothering you, but my partner and I read the riot act to our
clients, and I am happy to report that the figure Julie mentioned to you is the one
they'll go with."
"$750,000?" said the judge.
"Yes. And, judge, it is only because of our great respect for you that we put this
effort in with these people."
The judge motioned for Mandel to end his call and get O'Brien into the room.
Soon both lawyers were once again sitting across from each other in the robing
room. The judge looked at Mandel and said, for O'Brien's benefit, "$750,000,
that's the number, right?"
"OK," said the judge to Mandel. "Please leave the room," and the judge and
O'Brien were left face-to-face.
"So," said the judge. "You said you had more."
"I do, your honor, but you yourself said $700,000. They're showing no flexibility.
You know, I really believe I have a defensible case."
"Listen, we're way past that now. Go get more money, and get back to me right
away." In a few minutes, O'Brien was back with the judge.
"What's the story?" said the judge.
"Judge, out of the great respect my carrier has for you, they have authorized me to
offer the figure you recommended--$700,000."
The judge frowned and called in Mandel.
"Can we put it away for $700,000?"
103
"I don't think so, but I'll make a call, judge," said Mandel and left the room. In a
minute or so he was back.
"No luck, your honor, $750,000 is the number. They won't budge. After what
their son has been through, they feel it's the least that they can receive."
"Let me talk to O'Brien alone for a moment," said the judge. Mandel shut the door.
"Listen, O'Brien, I've tried. Don't make me try this case over $50,000. You'll use
that up in experts."
"Judge, I'll make another call."
Once again, the judge was left alone in the robing room to contemplate the ups and
downs of the settlement process.
O'Brien was back with the judge a few minutes later.
"I've got the 50."
"Great," replied the judge.
"But, judge, can you do me a favor--save me something? Twenty-five, maybe?"
"O'Brien, I realize I've been a little hard on you. Let me see what I can do."
With that, the judge buzzed his clerk to bring Mandel back in.
"Julie, $725,000, that's it. $725,000 settles the case."
"Your honor, I hear you, but my clients told me they wanted $750,000. I'm only a
messenger."
"Julie, tell them for me. Don't make me try this case for nickels and dimes. You
understand?"
"I got you, judge. Let me make a call to the attorney of record."
"You want to call from here?" asked the judge.
"No, your honor. I still have a quarter left."
Within minutes, Mandel strode through the door to the robing room and addressed
the judge and his adversary.
104
"Judge, out of my clients' great respect for you and their desire not to tie up your
part, they have reluctantly agreed to consent to a $725,000 settlement."
"Settled!" said the judge emphatically. "Good. It's 4:15. Will you have anyone from
the boy's family in here for the allocution?"
"Yes, judge. I think the father can be here tomorrow morning."
"OK," said the judge. "See you tomorrow."
Next morning, the judge sat in his robing room, reading and drinking a cup of
coffee. The clerk told him that everyone was outside and the reporter was ready.
"Terrific," said the judge. "Bring them in."
The clerk opened the door, peered into the courtroom, and motioned them inside.
O'Brien was first, followed by Mandel and the plaintiff's father. The judge
motioned everyone to be seated.
"Judge," said Mandel. "I'd like to introduce you to Mr. Parker, Steve's father."
The judge rose from his seat and reached over to shake hands with the father.
"I'm terribly sorry we have to meet under these circumstances."
"Thank you," responded the father.
"How's Steve today?" inquired the judge.
"It looks very bad. He was operated on yesterday and I really don't think he's
gonna make it for more than a day or two."
"I'm sorry. Well, look," said the judge, "we have an offer of $725,000 that I
understand settles the case. Right?"
Mandel raised his arms in a shrug and said, pointing to the father, "He's the boss."
"Look, Julie, I thought this was resolved. I'm not opening this thing up again," said
the judge. He turned to the plaintiff's father. "What do you say, Mr. Parker? The
number is $725,000. Is that acceptable?"
"Well, your honor, originally I had requested $800,000 and after discussion with
my lawyers, I had lowered my demand to $750,000, which I think was very
reasonable."
105
The judge fidgeted with a pen, becoming increasingly angry at this new
predicament. His eyes fixed for an instant on O'Brien's face, but before he could
open his mouth to invite him to engage in one further conversation, O'Brien, slowly
but unmistakenly, shook his head back and forth.
The judge's attention again became fixed upon the father.
"Listen," said the judge, looking at Parker. "Your lawyer agreed on your behalf to
$725,000 yesterday. Do you know that?"
"I did say that, judge," interrupted Mandel.
"Do you know the effort I went through for your benefit, to get this money on the
table? Do you know," *58 said the judge to the father, his voice quickly rising,
"that when this case began, the defendants were prepared to defend this case all
the way and hadn't offered a cent? Do you know that?"
"Judge, my family has the greatest respect for you, but we think we have been very
reasonable in our demands."
"Your honor," said Mandel, "can I speak to my client's father for a moment alone?"
"Sure," said the judge, and the father and the lawyer left the room.
A moment later, Mandel and Parker came back through the door.
"Your honor, you've beaten us all up," said Mandel. "I've lowered my fee. Settled,
$725,000."
"Good, let's get it on the record," said the judge.
The court reporter reviewed the appearances he had obtained for the record, and
the clerk administered the oath to Parker.
"You ready to do the allocution, Julie?" said the judge.
"Ready," said Mandel.
"Should we get Dr. Weinstein in here?" said the judge.
"Uh, I don't think so," said O'Brien. "I think it's better that both sides be kept
apart. I have complete authority, and I think, well, let's leave well enough alone."
"Suits me," said Mandel.
For the next few minutes, Mandel questioned his client concerning his
understanding of and agreement with the terms of the settlement.
106
"Mr. Parker, you know, don't you, that out of the principal amount of recovery
there will be deducted an amount representing disbursements incurred in
connection with this case and the counsel fee agreed to as part of the written
retainer statement signed by your son? Correct?"
"I was just thinking," said the father. "Maybe Steve had a special deal with the law
firm, you know, some percentage that was less than the standard ones lawyers
use."
"Mr. Parker, I can assure you," smirked Mandel, "that these particular lawyers
don't give deals to their own families."
"I see," said Parker.
"Fine," said the judge, "put the stip on the record."
O'Brien made a few minor alterations. Parker stated his reluctant assent, and the
judge thanked them all for their cooperation.
"It couldn't have been done without your honor's help," chorused the lawyers.
Then the judge walked the lawyers and Parker to the door of his robing room and
shook hands again with Parker.
"I hope we meet again under better circumstances," said the judge.
"Yes, Mr. Parker," said O'Brien, as he reached over to shake his hand.
"Godspeed to you and your boy."
The judge returned to the robing room and sat for a while thinking about the poor
young man in the hospital who would probably be dead in a day or so. And his
thoughts turned also to the boy's father and mother who were now about
$500,000 richer and he wondered how they might spend the money.
David B. Saxe is a justice of the New York State Supreme Court.
107
Originally published in 33 U.C.L.A. L.REV. 485.
Copyright © 1985, The Regents of the University of California. All Rights Reserved.
Copyright © The Regents of the University of California,
1985.
UCLA Law Review
DECEMBER, 1985
33 UCLA L. Rev. 485
FOR AND AGAINST SETTLEMENT:
USES AND ABUSES OF THE MANDATORY SETTLEMENT CONFERENCE
Carrie Menkel-Meadow *
* Professor of Law, University of California, Los Angeles. A.B., Barnard College,
1971; J.D., University of Pennsylvania, 1974. An earlier version of this Essay was
delivered to the 1985 Annual Chief Justice Earl Warren Conference on AdvocacyDispute Resolution in a Democratic Society and will be published in the conference
proceedings. I thank the Roscoe Pound Trial Lawyers Foundation for permission to
reprint portions of my earlier paper. I also thank Carole Goldberg-Ambrose, Marie
Provine, Judith Resnik, Murray Schwartz, and Carroll Seron for their comments on the
earlier draft and Lois Scali for her excellent editing.
[*485] INTRODUCTION
One of the motivating impulses behind the alternative dispute resolution movement is
the notice that dispute resolution outside of full adjudication is a good thing. n1 Because
dispute resolution is considered a good thing, many judicial administrators and rule
drafters have reasoned n2 that the process of settlement, compromise, n3 and
alternative dispute resolution [*486] should be made mandatory. At the same time, a
dispute about the value of dispute resolution is taking place in the law reviews and
judicial administration journals. Several articulate and sensible critics have asked us to
consider what we gain and lose when we divert cases away from the formal adjudication
system. n4 My difficulty with this debate is that both sides make unspecified
assumptions about the empirical reality of both the formal adjudicatory system and the
alternative dispute resolution mechanisms. In addition, they misinterpret the purposes of
each of several dispute resolution devices and assume that they are applicable to all cases.
In an attempt to "mediate" this dispute, this Essay explores the theories developed by
those for and against settlement, particularly in the mandatory settlement conference
context. n5 It is here that commentators make their most vigorous arguments about the
advantages of settlement. Whether and when settlement is a good thing is one question;
whether settlement conferences should be mandatory is another. On the assumption that
many courts will continue to require settlement conferences, I will take up yet a third
108
question: how mandatory settlement conferences can be conducted to maximize their
usefulness without seriously threatening the appropriate role of judges in formal
adjudication.
I. THE ISSUES: DISPUTES ABOUT DISPUTE RESOLUTION
One of the most fundamental disputes about nonadjudicatory dispute resolution
concerns the values it is intended to promote. Some commentators contrast the
quantitative, efficiency, process axis to the qualitative, justice, substance axis. Some
extol mandatory settlement conferences, arbitration, [*487] and mediation programs
because they decrease delay n6 of case processing time n7 and promote judicial
efficiency. This claim is not supported by the empirical research at this stage. n8 Others
assert n9 (and I am affiliated with this school) n10 that the quality of dispute resolution
is improved when models other than the formal adjudication model are used. Solutions
to disputes can be tailored to the parties' polycentric needs n11 and can achieve greater
party satisfaction and enforcement reliability n12 because they are not binary, win/lose
results. Still others assert that quality solutions are more likely to emerge when the
dispute resolution process is not privatized and individualized. n13 This argument is
characterized alternatively as the "cool efficiency/warm conciliation," n14 [*488]
"quantitative/qualitative," or "managerial/substantive" justifications for nonadjudicative
dispute resolution.
A second dispute concerns the appropriate role of judges when they become involved
in alternative dispute resolution or settlement conferences. The judges themselves
characterize this issue as whether they should be "active" or "passive." n15 Academics
debate whether judges should be "managers" or "adjudicators." n16
A third dispute falls on the micro-macro axis of analysis. Is the appropriate unit of
analysis the particular or individual disputes that are resolved and with which the parties
and lawyers are satisfied or should the unit of analysis be the larger system as measured
by judicial management statistics or by the quality of precedents produced? n17 Owen
Fiss has recently suggested that if too many cases are diverted from the courtroom into
settlement, appellate judges will have an insufficient number n18 and quality of cases
from which to make the law. n19 Fiss's prediction, if true, could have grave implications
for the legitimacy of the entire legal system.
The three disputes outlined above raise issues that [*489] should affect significantly
our assessment of the strengths and weaknesses of any dispute resolution device. In
order to evaluate the arguments advanced in these disputes, we must explore the
underlying values and the empirical claims made in support of these arguments.
There are, as I see it, three value claims. First, there is the efficient-justice claim: Full
adjudicatory trials are too long, and there could be too many of them to permit
expeditious justice. Ultimately, failure to provide "speedy and inexpensive justice" n20
can become a substantive justice problem. Thus, proponents of mandatory settlement
conferences, court-annexed arbitration, and mediation n21 argue that more efficient
justice is better justice.
Second, there is the substantive justice claim: The principal function of our legal
109
system is to provide fair and just results to the individual disputants and to society. These
results are dependent on rules, generated from other people's disputes, that help define
appropriate behavior. Thus, in considering any dispute resolution device we should ask if
this process is the most likely to produce a just result for the parties and/or the best result
for the future guidance of society. (The answer to this compound question is sometimes
different for each of its parts. This contributes to the difficulty of assessing whether
settlement is appropriate.) n22
Third, there is a claim I will call a substantive process claim, made most recently by
Judith Resnik. n23 Proponents of substantive process argue that whether a process is
public or private (subject to accountability), coercive or voluntary, reasoned or
rationalized, matters a great deal, both for the substantive justice achieved and for the
legitimacy of the entire process as viewed by those inside of the dispute and by those
outside. A corollary substantive process claim, with a [*490] focus different from the
focus of the claim asserted by Professor Resnik, is that the quality of the process (for
example, the "warmer" modes of dispute processing n24 such as conciliation and
mediation which give greater involvement to the parties and permit greater flexibility in
solution) serves important human values different from the value of a quality substantive
outcome.
These three value claims are not as distinct as they may appear: All assume that the
process chosen affects the outcome and the outcome desired affects the choice of process.
To complicate matters further, as reviewed below, there are differences of opinion as to
how effective particular dispute resolution forms are in advancing these values.
II. THE SETTLEMENT CONFERENCE: A VERY BRIEF HISTORY
The origins of the modern court-initiated settlement conference can probably be
traced to local courts' efforts to apply Scandinavian conciliation techniques to local cases
in the hope that community norms could be brought to bear to help resolve disputes.
Several municipal courts in the United States began utilizing both voluntary and courtstructured conciliation in the early twentieth century. n25 From what we know of this
early history, the primary impulse behind these efforts seems to have been related to
substantive process -- producing harmony among the parties and resolving disputes with
communitarian values that the court assumed were shared by the disputants. At some
point in the 1920's efficiency concerns became a part of the rhetoric surrounding
settlement. Judicial reformers spoke of conciliation as a method of curing court delay.
n26 In the late 1920's the judges of Wayne County Circuit Court organized a
"conciliation" docket to help manage what was perceived as a highly congested court
docket. The conciliation process [*491] was originally voluntary and informal, but was
eventually made mandatory. n27 Similar conciliation dockets were established in city
courts in Cleveland, Milwaukee, Boston, and New Jersey. n28 Conciliation or
settlement methods were largely dependent on the practices and personalities of
particular judges and on an informal transmission and socialization process. n29 As is so
often the case in legal reform, the debates of today reflect the two different past
justifications of conciliation: Substantive process values and efficient delay reduction.
A parallel, but largely separate, move to facilitate judicial administration was the
development of the pretrial conference to streamline trials. Pretrial conferences
110
facilitated the specification of issues, evidence, and rulings on preliminary motions. This
procedure, largely derived from English and Scottish practices of the early nineteenth
century that provided for oral presentation of preliminary matters in open court, n30
became part of federal practice in 1938 with the promulgation of Rule 16 of the Federal
Rules of Civil Procedure. During the drafting of the rule and its first applications,
disputes developed about the relationship of the pretrial procedures to settlement, raising
the question of appropriate judicial role. n31 Although the rule, as originally drafted,
explicitly excluded the use of the pretrial conference for settlement purposes, some local
rules and individual judges encouraged settlement discussions with some form of judicial
intervention. n32 As judges and academics argued about the appropriateness of judicial
involvement in settlement discussions, distinguishing between jury and nonjury cases, or
magistrate and judge-managed settlement conferences, n33 pressures from the
absolutely increasing [*492] numbers of cases n34 gave rise to proposals for rule
reform. As Arthur Miller, one of the drafters of new Rule 16, has indicated, the rule is
intended to encourage judges to put more time into the management of the "front-end" of
cases and explicitly to encourage, if not require, judicial involvement in settlement
discussions at the two pretrial stages (preliminary, following filing of the complaint, and
final, immediately preceding trial). n35 The question at the heart of the debate about the
role of settlement in pretrial conferences under Rule 16 is whether cases and settlement
should be initiated and controlled by attorneys (or parties) or by judges. n36 This issue
involves fundamental conceptions of our adversary system as distinguished from more
judicially activated inquisitorial systems. n37
As the Rule 16 controversy n38 continues, another recent development promises to
influence greatly the debate about settlement conferences. Federal Rule 68 n39 and
state equivalents that tax the failure to reach settlement by imposing penalties for failure
to accept "reasonable settlements" increase the burden of "doing justice" by presupposing
sufficient opportunities for settlement offers to be made and discussed.
Finally, the magistrates in the federal system n40 provide another class of judicial
personnel to conduct settlement conferences. In some cases, their presence moots the
debate about judicial role by creating a set of "settlers or managers" distinct from the set
of "adjudicators and decision-makers." n41
[*493] As the debate about federal practice continues, many state courts have
already made settlement conferences mandatory. Evaluation studies have attempted to
assess their impact. n42 Federal courts, state courts, and smaller local dispute resolution
units have provided a variety of other forms for more rapid processing and better dispute
processing. Among these are arbitration, mediation (both mandatory and voluntary), and
such innovations as the minitrial and the summary jury trial. n43
III. THE EVIDENCE ON SETTLEMENT CONFERENCES: WHAT DO THE
DATA DEMONSTRATE?
Proponents of the settlement conference point to its ability to dispose of cases
efficiently, decreasing the delay of case resolution and increasing the likelihood of
achieving settlements.
The first systematic study of the pretrial conference was undertaken by Maurice
Rosenberg on mandatory conference, voluntary conference, and nonconference cases in
111
New Jersey. n44 That study reported findings, as yet uncontradicted, that mandatory
pretrial conferences improved the quality of trial proceedings, but actually reduced the
efficiency of the court by consuming judges' time in handling conferences, rather than in
trying cases. Plaintiff "victories" were as frequent (all cases were personal injury cases)
in mandatory conference cases as in other cases, though pretried cases were likely to
result in higher recoveries. Most [*494] significantly, cases submitted to mandatory
pretrial conferences were no more likely to result in settlements than those that were not.
Settlement rates were fairly uniform across all three types of cases studied. n45 In
addition to quantitative analysis of the data collected, the Rosenberg study also consisted
of interviews with and observations of judges with a variety of views on the judicial role
in settlement conferences. Some judges participated as passive, neutral referees of the
dispute; others were actively engaged in case management (i.e., issue clarification); still
others saw settlement as one of their most useful functions. One of the most interesting
and seldom noted implications of the Rosenberg study is that if parties achieve settlement
with equal frequency in mandatory, voluntary, and nonconference cases, judicial
settlement management may indeed be an inefficient use of judicial time. More
sophisticated study is necessary for us to determine whether cases in particular
substantive areas are more likely to settle with judicial intervention than without, or
whether settlements "improve" case resolution from a substantive justice perspective,
before we can conclude that the mandatory judicial settlement conference is inefficient.
Slightly more recent data do not support convincingly the efficiency argument. The
Federal Judicial Center's study of six district courts revealed that courts with the greatest
settlement activity had the slowest rate of case terminations, or conversely, the "faster"
courts in terms of dispositional speed wrer those that minimized judicial involvement in
settlement. n46 There are some data to support the proposition that case management
may reduce the time required for disposition, but these findings concern nonsettlement
intervention devices, such as scheduling, discovery management, and motion disposition.
n47 Studies of state court pretrial management programs have uncovered similar
findings. n48
Part of the difficulty in assessing the effectiveness of settlement conference activity
stems from serious methodological [*495] and definitional problems. As Mary Lee
Luskin has argued, we cannot assess what is a delayed process until we have a better
theoretical and empirical sense of what constitutes "normal" or "optimal" case
processing. n49 More puzzling for the evaluation scientist are questions of variation in
the time required for the disposition of cases of different types, (should antitrust cases
take more or less time than constitutional cases?), in jurisdiction (what should be
measured -- case processing by court unit or by individual case?), and in cause (showing
direct linkages between particular court innovations and processing time reductions is
difficult in nonexperimental conditions in which frequently more than one delay
reduction device may be in place simultaneously). As any student of elementary statistics
knows, correlation is not causation. Association of various factors with reduced delay
may demonstrate simply that some unmeasured condition encourages the existence or
interaction of other factors. In the language of many scholars of judicial administration
the "local legal culture" n50 (vague as that term may be) may make it easier for judges
to confer with lawyers to attempt to settle a case, while simultaneously producing a
climate conducive to relatively contest-free discovery. In a recent study of attorney
112
attitudes toward judicial settlement Wayne Brazil found that lawyers in the Northern
District of California were more enthusiasitic about judicial intervention in settlement
than lawyers in Florida or the Midwest. n51 The likely reason, Brazil posits, is that
litigators in the federal courts of northern California are acculturated to judicial
intervention in settlement because of the active involvement of judges in mandatory
settlement procedures in the state courts of California. n52
A greater methodological or metamethodological problem [*496] arises from the
relationship of method to findings. The studies that report legal cultural factors (Church's
local discretionary system n53 ) rely on anthropological measurement techniques -interviews and informal observations in which rich detail and variation may be observed.
More quantitative studies, not surprisingly, report on the achievements of structural
factors that lend themselves to easy categorization and bimodal analyses. Indeed, one
might argue that the very concern with delay, efficiency, and the pace of litigation is, in
part, a product of the assumed ease of measuring such phenomena through the
increasingly comprehensive quantitative data collected by the Administrative Office of
United States Courts, the Federal Judicial Center, and other court administrators and
managers. n54 How much harder it is to debate and measure the quality of justice. Even
when attempting to measure quality, we tend to use operationalized measures of justice
like "party satisfaction" that are easier to categorize and measure (very pleased,
somewhat pleased, not very pleased) than other possible measures (most legitimate, took
account of both parties' valued interests). n55
It is no accident that the protagonists of the recent debates about whether settlement
conferences and other judicial management devices are reducing delay are professional
court administrators n56 and critical academics. n57 On the one hand, Steven Flanders
and Paul Connelly argue that managerial control of the case (including nonsettlement
functions) shortens case processing time by bringing the parties together and reducing
lawyer control of the case. n58 On the other hand, Judith Resnik argues that such
devices as the mandatory settlement conference may create greater delays because they
force all cases through a settlement process, whether it is appropriate for a particular case
or not. This, Resnik argues, takes a great deal of judicial time without necessarily
producing a more efficient result or any final result [*497] at all. n59 Professional
court administrators argue that rule changes can change behavior which in turn will affect
rates of settlement and dispositions. Academics and evaluators n60 argue that more
complex relationships govern (1) whether rules can or should affect behavior, and (2) the
costs of the rules themselves in routinizing increased management (judicial time and
paperwork).
What do we learn from all this? Efficiency and reduction of delay do not necessarily
increase with judicial settlement management. Indeed, the available data seem to suggest
the opposite. Yet many commendators still perceive mandatory settlement conferences
and other judicial and court management devices as good ideas. Why? At least some of
the reasons are grounded in the substantive justice and substantive process values
associated with dispute resolution.
One study of the role of courts found that 75% of federal judges and 56% of state
judges initiate settlement discussions in jury trials. n61 I will explore what judges
actually do in settlement conferences below, but it is instructive to note that despite all
113
the academic criticism of the judicial settlement role, lawyers overwhelmingly seem to
favor judicial intervention. In a recent study of lawyers from four federal district courts,
Wayne Brazil (then law professor, now United States magistrate) found that "staggering
85 percent of our respondents agree that 'involvement by federal judges in settlement
discussion [is] likely to improve significantly the prospects for achieving settlement.'"
n62 A majority of these lawyers felt that settlement conferences should be mandatory. A
more detailed analysis of the data n63 reveals that most of the respondent lawyers in this
study do not see the principal advantage of judicial involvement as efficiency, but as a
complex web of qualities that are thought to produce better, and perhaps earlier,
settlements. The lawyers valued judicial intervention in settlement proceedings most
[*498] when it was analytic, active, based on the knowledge of specific facts of the case,
rather than superficial formulas or simplistic compromises, and there are explicit
suggestions or assessments of particular solutions. n64 Thus, these lawyers believe that
there is a role for mandatory settlement conferences in producing particular kinds of
settlements. Whether or not it is true that judicial intervention in settlement conferences
actually produces a better result is not yet established on an empirical basis. But that lack
of knowledge has not inhibited the debate about whether judges n65 should be involved
in the settlement process.
IV. THE ROLE FOR SETTLEMENT CONFERENCES IN PROVIDING
SUBSTANTIVE JUSTICE: WHEN SETTLEMENT?
Those who criticize the role of the judge in settlement functions assume the judge's
proper role is purely adjudicative. Owen Fiss has stated Starkly: "Courts exist to give
meaning to public values, not to resolve disputes." n66 Judith Resnik has argued that
judges are required to provide reasoned explanations for their decisions, are supposed to
rule without concern for the interests of particular constituencies, are required to act with
deliberation, and are to be disinterested and disengaged from the dispute and disputants.
n67 Those who criticize the settlement function, I fear, have enshrined the adjudicative
function based on an unproven, undemonstrated record of successful performance, just as
the efficiency experts have exalted settlement conferences relying on unconvincing
statistics. For me, the more fruitful inquiry is to ask under what circumstances
adjudication is more appropriate than settlement, or vice versa. n68 In short, when
settlement? To answer this question [*499] we must separately examine the alleged
functions and purposes of adjudication and settlement.
A. The Functions of Adjudication
In criticizing the alternative dispute resolution movement, Owen Fiss has eloquently,
but incorrectly, I think, argued that settlement is dangerous because it robs us of the
essential functions of our legal system that can be provided only by adjudication.
Settlement, which Fiss sees as "the civil analogue of plea bargaining" is "a capitulation to
the conditions of mass society" in which "justice may not be done." n69 Fiss argues that
settlement fails to deal with inequalities of power. The terms of settlement reflect the raw
power of the parties in a bilateral exchange that permits no intermediation by a
superauthoritative judge, as in adjudication. Fiss suggests that "the guiding presence of
the judge . . . can employ a number of measures to lessen the impact of distributional
inequalities" such as asking questions, calling his own witnesses, inviting other persons
114
to participate as amici and employing "judgment which aspires to an autonomy from
distributional inequalities." n70
These arguments are problematic, though instructive. First, two unsubstantiated
empirical claims are asserted: (1) judges use techniques to balance the equities between
parties, and (2) these techniques have the desired effect. Second, assuming arguendo that
these assertions are true, the ameliorating techniques could be used in settlements
managed by judges through court-sponsored settlement conferences.
In complaining about the ill effects of settlement, Fiss collapses a wide variety of
settlement processes (bilateral negotiation, mediation, arbitration, court-sponsored
settlement conferences, rent-a-judge n71 ) into one general category. He fails to take
account of the diversity of settlement structures, each of which may utilize some aspect
of adjudication processes. Thus, Fiss is correct to point out the dangers of [*500]
unequal power, but fails to consider the potential of judges in settlement conferences to
serve the express purpose of reducing unfairness when parties have unequal resources.
Striking closer to the core of adjudication, Fiss argues that courts are not designed to
be simple dispute resolvers. Their function is to "explicate and give force to the values
embodied in authoritative texts" n72 and to provide public guidance about the normative
order: "a settlement will thereby deprive a court of the occasion and perhaps even the
ability to render an interpretation." n73 According to Fiss this is particularly true in
cases in which the issue is not the "neighborhood" dispute romanticized by the
proponents of settlement, but an important constitutional or institutional reform issue.
n74
Fiss makes several claims that should be unpacked separately. First, Fiss asserts that
the primary adjudicative function for courts makes settlement inappropriate in many, if
not most, cases. When an authoritative ruling is necessary, I believe Fiss is right -- the
courts must adjudicate and provide clear guidance for all: Racial discrimination is wrong;
oppressive prison conditions are intolerable in a decently humane society. n75 This tells
us something about when mandatory settlement conferences might be inappropriate:
when the issue has an impact on the public; or when, even in a "private" dispute, there is
a need for authoritative third-party ruling (i.e., when one party seeks vindication or when
the force of a court order is necessary to bring about compliance). Even assuming public
adjudication is necessary to establish a rule or a basic right, court-guided settlement and
management still may be necessary to implement such rulings. A greater difficulty may
be determining in advance of litigation or settlement which disputes are "public" or
require adjudication and which are "private" n76 or can do without [*501] public
airing.
Second, what should be done when the disputants to an important and "public"
dispute prefer private resolution and settlement (as in some school desegregation and
many employment discrimination suits)? Who should decide when public adjudication in
necessary -- the parties (which is the principle behind our party-initiating adversary
system) or the judge, or a group of legal scholars and critics? Fiss suggests that parties in
such situations choose peace, through settlement, over justice, through adjudication. I
question whether this perceived dichotomy is accurate. In my view, parties will
frequently opt out of adjudication precisely because the limited remedial imagination of
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courts makes justice less possible in adjudication than in individually tailored settlements.
n77
Finally, Fiss acknowledges a genuine debate about the numbers of cases that may
require public, authoritative rulings. Although I do not think most cases are of the
"neighborhood dispute" variety, I also do not think most are of the "structural reform"
variety. The point may not be how many cases are in either category, but that "the
settlement movement must introduce a qualitative perspective, it must speak to these
more significant cases." n78 Those who applaud settlement, like those who applaud
adjudication, must be more sophisticated about when and how to apply settlement or
adjudicative devices. n79
A more significant point about adjudication embedded here is that, if adjudication is
the process by which our rules are fleshed out in their principled and practical way,
mandatory settlement may pose a problem. So many cases may be diverted away from
the system that we will not have a good or representative sample left for rule making.
Adjudication [*502] in a common law system may require gradual and rich decision
making based on a wide variety of fact situations that test the limits of the rules. This,
however, is the need of adjudication for good rule making; it is a policy or constitutive
issue on a different level from what is best for each individual case or for the system
management problems the efficiency experts pose. Over 90% of all cases (both civil and
criminal) are currently settled and taken out of the system and, thus, are unavailable for
common law rule making. If Fiss is suggesting that the settlement movement will take
particular types of potential rule making cases out of the system, he is asserting an
interesting, but at this point speculative, and empirically untested, notion.
Fiss's picture of adjudication poses another issue for settlement -- legitimacy and
enforcement. At the first level Fiss argues that only after a "full day in court" (rather than
a "mini-day" in court) with an airing of the arguments about applicable law and disputed
facts will the parties fully accept the legitimacy of the decision. And only the
combination of this airing and an authoritative ruling by a third party will encourage the
parties to obey and subject them to the contempt power of the court if they do not. In
Fiss's words: "Courts do not see a mere bargain between the parties as a sufficient
foundation for the exercise of their coercive powers." n80 This statement, if true, would
seriously undermine the power of the settlement process. But once again, the statement
has not yet been empirically verified. Furthermore, Fiss focuses an an aspect of the
adjudication process that is not necessarily absent in settlement conferences. If judges
participate in settlement conferences, and if most major cases settle in court or out of
court in conferences, the entry of a consent decree or formal settlement agreement in the
court's record would alleviate some, though not all, of the legitimacy and enforcement
problems. More importantly, Fiss fails to deal with what is perhaps the most effective
argument made on behalf of settlements: n81 If the parties make their own agreement
they are more likely to abide by it, and it will have greater legitimacy than a solution
imposed from without. n82
[*503] Finally, Fiss asserts that adjudication and the adherence to the procedural
rules are more likely to assure authoritative consent of the parties (particularly when the
parties are groups). Again embedded in this one particular concern is a more general
concern. The long history of procedure should tell us something about the value of
116
having specified rules of the game established in advance. Whether it is the rule about
consent in a class action or evidence rules that attempt to assure reliability and avoid
prejudice, there is a serious danger embedded in the informal and idiosyncratic aspects of
the settlement process. I do not think these problems are insurmountable (it may be
easier to bring all interested parties into a mediated settlement n83 than into a
courtroom), but they are worthy of attention. If settlement conferences become
mandatory we must be conscious of the need for flexibility as well as the danger of
carelessly tossing aside several hundred years of procedural protections.
Fiss focuses on the process of adjudication, but other critics of settlement focus on the
role of the judge as an essential personage in the story of adjudication whose robe will
become sullied if settlement is added to the judicial duties. As discussed above,
Professor Resnik has argued that judges, as public officials whose function is to judge,
must remain neutral, disinterested, and public in their activities in order to fulfill the
traditional roles Fiss describes: power equalizers, enforcers, interpreters, and explicators
of the law. n84
It is a nice story -- but is it true? On a historical level we know that courts have often
done more than adjudicate in the pristine fashion described by Fiss and Resnik.
Professors Schwartz, Eisenberg, Yeazell, and Chayes n85 tell us that courts have always
managed and administered not only themselves, but also the criminal justice system,
probate matters, and other matters as well. Courts have promulgated rules, acting as a
superlegislature on occasion. n86 [*504] Judges have been asked to mediate or settle
important public issues outside the formal structure of adjudication. n87 Contrary to
Fiss's restrictive view, courts and the judges who sit in them historically have filled more
roles than solely authoritative norm explicators.
For a meaningful appraisal of the adjudication and settlement controversy, we need to
know more about the empirical reality of judging. Some of the empirical evidence we
have suggests that courts (and legislatures) are not very effective at making or
interpreting laws. n88 In addition, Marc Galanter's work suggests that courts may not be
particularly good equalizers of disparate resources. n89 Thus, whenever I am confronted
with a critic of the settlement movement, I am inclined to ask -- settlement compared to
what? n90 We should learn from the trenchant criticisms of settlement that it can be
problematic and may not be appropriate in all cases. We should seriously address those
criticisms. But we should be similarly demanding of what is offered as the alternative to
settlement.
B. The Functions and Purposes of Settlement
I will not repeat the often stated assertion that settlement is a "docket-clearing"
device. We have examined the efficiency argument and found it wanting. What
settlement offers is a substantive justice that may be more responsive to the parties' needs
than adjudication. Settlement can be particularized to the needs of the parties, it can
avoid win/lose, binary results, provide richer remedies than the commodification or
monetarization of all claims, and achieve legitimacy through consent. In addition,
settlement offers a different [*505] substantive process by allowing participation by the
parties as well as the lawyers. Settlement fosters a communication process that can be
117
more direct and less stylized than litigation, and affords greater flexibility of procedure
and remedy. n91
But settlement is not all things to all people. Settlements can be coerced, either by the
power of the parties, by a strong judge in a settlement conference, or by inexorable trial
dates. Settlements can be economically wasteful n92 if the participants fail to consider
all of the information bearing on the dispute and prevent thorough investigation and
airing of all issues. They can be achieved in illegitimate and private ways. For example,
several parties may gang up on another, parties may distort facts, or make incorrect
predictions about the probable trial outcome. They can be unfair and unprincipled, based
on factors extraneous to the merits. As discussed above, private settlements also can be
problematic when there is a need for a clear or authoritative ruling. n93 Significantly,
settlements may be disturbing on a systemic or societal level if separate classes of
disputants are allocated routinely or by paid choice to one form of dispute resolution.
n94
For me, the central question in this dispute about dispute resolution should not be
whether cases should always be settled or always be adjudicated, but rather when and
how settlements are most appropriately achieved. I remain agnostic on the issue of
whether we can specify in advance which types of disputes are best settled and which are
best adjudicated. Like Fiss I fear that tracking in advance will not [*506] work n95 or
that it will be more expensive to make predictions in some cases than to proceed with
litigation. I also remain more skeptical than Professors Green and Bush n96 about the
feasibility of establishing criteria for tracking to appropriate dispute resolution
mechanism in advance of case processing. What I am certain about is that, if settlements
are to be encouraged and if judges are to maintain or increase their involvement in
producing settlements, we must confront the weaknesses of the mandatory settlement
conference in order to provide the best possible substantive and procedural justice. By so
doing, we also will continue to pursue the elusive goal of efficiency.
V. THE FUNCTIONS AND PURPOSES OF THE MANDATORY SETTLEMENT
CONFERENCE: THE HOW AND WHY OF SETTLEMENT PRACTICES
As greater numbers of judges and courts use settlement conferences, our information
about particular practices increases. Our current sources of data include reports and
articles written by judges and settlement officers, training materials written for new
judges, some survey data collected by social scientists and court administrators, and
descriptive and critical reports by academics. As we review this data, it is useful to think
about how the manager of the settlement conference, whether judge or magistrate, views
his or her role. What emerges from the data is a variety of role conceptions that parallel
the various conceptions of the goals of settlement. For some, efficient case management
is the primary role; for others, the primary role is the facilitation of substantive or
procedural justice. For others still, the primary role is simple brokering of what would
occur anyway in bilateral negotiations. Some judges avoid active settlement activity
because they view adjudication as their primary role.
My concern with the settlement management role conception is twofold. First, role
conception seems to have a direct effect on the choice of techniques used. In ture, the
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techniques may have a direct influence on the type of settlement reached. Second,
without an open debate about the merits of particular technique choices, we may be
unaware [*507] of both primary and secondary effects of making settlement conferences
mandatory.
It is not surprising that the literature describing practices in settlement conferences
reflects the full range of attitudes toward the appropriateness of judicial intervention.
Those judges least comfortable with intervention in settlement describe the settlement
process as a mere "by-product" of the mandatory pretrial conference. n97 Such judges
see themselves simply as facilitators of what the lawyers would do anyway, providing a
meeting place for lawyers to get together and discuss their cases. In one welldocumented case, the judge arranged several days of cocktail parties and country club
dining to encourage a meeting of counsel in a complex case. n98 Moving slightly closer
to the activist line are those judges who maintain that the best intervention on behalf of
settlement is the setting of a firm trial date, thereby expediting discovery, improving
estimates of costs and predictions of trial outcomes, and setting firm deadlines for
discovery and trial. n99
At the other extreme are the activist judges who see settlement of cases as one of their
principal functions. In one of the more thoughtful judicial analyses of the advantages and
disadvantages of judicial intervention, Judge Fox of the federal district court in western
Michigan has analyzed both the quantitative efficiency, docket management arguments
and the substantive values (results more closely related to the merits of the cases as the
parties and their lawyers understand them) arguments in favor of intervention. n100
A. The Dangers of Efficiency-Seeking Settlement Techniques
For those who seek to use the settlement conference as [*508] a docket-clearing
device, the conference becomes most problematic in terms of the substantive and process
values (i.e., quality of solution) previously discussed. Judges see their role as simplifying
the issues until the major issue separating the parties (usually described as money) is
identified and the judge can attempt to "narrow the gap." In one study judges and lawyers
were asked to report on judicial settlement activity. Seventy-two percent of the lawyers
reported that they participated at least once in settlement conferences in which the judge
requested the parties to "split the difference." n101 The same study noted that when
local rules require settlement conferences judges tend to be more assertive in their
settlement techniques (using several techniques that some of the lawyers considered to be
unethical). n102 According to the study, jurisdictions with mandatory settlement
conferences took more time in moving cases toward trial. This confirms the findings of
earlier studies. n103
A much touted settlement technique is the use of the "Lloyds of London" formula:
The settlement judge asks the parties to assess the probabilities of liability and damages
and, if the figures are within reasonable range, to split the difference. n104 The
difficulty with such settlement techniques is that they tend to monetarize and compromise
all the issues in the case. Although some cases are reducible to monetary issues, an
approach to case evaluation on purely monetary grounds may decrease the likelihood of
settlement by making fewer issues available for trade-offs. n105 Furthermore, a wider
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definition of options may make compromise unnecessary. As the recent outpouring of
popular and scholarly literature on negotiation illustrates, the greater the number of issues
in controversy between the parties, the greater the likelihood of achieving a variety of
solutions. Parties may place complementary values on different items. n106 The irony
is that settlement managers, who think they are making settlement easier by reducing the
issues, [*509] may in fact be increasing the likelihood of deadlock by reducing the
issues to one. Furthermore, as I have argued at length elsewhere, using money as a proxy
for other interests the parties may have, may thwart the possibilities for using party
interests for mutual gain. n107
In addition to foreclosing a number of possible settlements, the efficiency-minded
settlement officer seems prone to use coercive techniques such as suggesting a particular
result, making threats about taking the case off the docket, directing meetings with clients
or parties. Lawyers find these techniques problematic. n108 Thus, the quest for
efficiency may in fact be counterproductive.
B. The Search for Quality Solutions
Some recent data seem to indicate that greater satisfaction can be achieved with a
different settlement management role -- the facilitator of good settlements. Brazil's
survey of lawyers practicing in four federal districts reveals that lawyers favored
intervention techniques that sought to produce the "best result." Lawyers favored such
techniques because judges who analyzed the particular facts of the case (as opposed to
those who used formulas like Lloyds of London"), offered explicit suggestions and
assessments of the parties' positions, occasionally spoke directly to recalcitrant clients,
and expressed views about the unfairness of particular results. n109 Brazil's data are
interesting in that they point to variations in the desirability of particular settlement
techniques, depending on size of case, case type, defense or plaintiff practice, and other
demographic factors. n110
What emerges from Brazil's data is that lawyers want different things in different
cases. Thus, a routinized settlement agenda is not likely to be successful in satisfying
their desires. More significantly, the data show that lawyers do not perceive judges'
settlement role as significantly different [*510] from their adjudicate role when the
judges employ the more favored settlement techniques. In alternative dispute resolution
parlance, the lawyers of Brazil's study seek a hybrid of the adjudicator -- the "med-arb"
(mediator-arbitrator):
They prefer that judges express opinions, offer suggestions, or analyze situations
much more than they value judges asking the attorneys to make a presentation or conduct
an analysis. Our respondents consistently give higher effective ratings to settlement
conference procedures that revolve around inputs by judges than those that feature
exposition by counsel. Thus, the lawyers' assessments of specific techniques reinforce
the major theme that what litigators want most from judges in settlement conferences is
an expression of analytical opinion. n111
The lawyers wanted help in achieving specific results through analysis and reasoned
opinions, not formulaic compromises. Whether judges will deliver such help is another
issue. If, as Resnik argues, there is a danger that judges will manipulate results to serve
120
their own ends when the results do not have to be justified in print, we should view with
distrust some of the techniques suggested here. But if judges (or magistrates) will serve
as Howard Raiffa's "analytic mediators" (i.e., asking questions to explore the parties'
interests and attempting to fashion tailor-made solutions from an objective" outside-ofthe-problem position, but with additional information), then judicial and magistrate
settlement managers may be providing both better and more efficient (in the Pareto
optimal sense) solutions to litigation problems.
Judges who perform these functions are not necessarily mediators, though they are
frequently called that by themselves n112 and others. n113 Strictly speaking, a
mediator facilitates communication between the parties and helps them to reach their own
solution. As a mediator becomes more directly involved in suggesting the substantive
solution, his or her role can change and he or she can become an arbitrator or adjudicator.
It appears that the role judges and magistrates assume in many settlement conferences is
this hybrid form of med-arb. Med-arb uses all the techniques associated [*511] with
mediation and arbitration -- caucusing (meeting with the parties separately), making
suggestions to the parties, allowing closed or best-offer bidding, and meeting with
principals (clients) who have authority to settle or to reconsider and reconceive the
problem. As the med-arb process moves toward arbitration, "settlements" may closely
resemble adjudication with rationalized, normative, or law-based solutions. n114
To the extent that settlement procedures are used to achieve substantive outcomes that
are better than court-defined remedies, they have implications for how the settlement
conference should be conducted and who should conduct it. First, those with knowledge
about the larger implications of the litigation -- the parties -- should be present (this is the
principle behind the mini-trial concept with business personnel in attendance) to offer or
accept solutions that involve more than simple money settlements. Second, such
conferences should be managed by someone other than the trial judge so that interests
and considerations that might effect a settlement but would be inadmissible in court will
not prejudice a later trial. Some argue for a separate "settlement officer" because the
skills required for guiding negotiations are different from those required for trying cases.
Third, some cases in which issues should not be traded off should not be subjected to the
settlement process at all. For example, in employment discrimination cases, parties
should not be asked to accept monetary settlements in lieu of a job for which they are
qualified. Finally, a more traditional mediator's role may be more appropriate when the
substantive process (i.e., direct communication between the parties) may be more
important than the substantive outcome (i.e., employer-employee disputes, some civil
rights cases).
CONCLUSION
Several important studies are now available to document the variety of settlement
techniques and the frequency of their use. n115 The question remains, with the choice of
so [*512] many different goals, techniques, and bases for evaluating them, should
settlement conferences be mandatory? Both federal courts, through Rule 16, and state
courts seem to be moving in this direction. The state of California has introduced such
devices as "trial holidays" for weeks at a time (during which all judges work at settling
cases and mandatory settlement and readiness conferences). n116 There are costs
associated with such practices. If all cases had to pass through the mandatory settlement
121
conference sieve, the queue for trial might get even longer and the additional rounds of
settlement conferencing might cost clients more than they save in litigation fees. Until
we know that more or better or different types of settlements are achieved through
conferences, it may be a mistake to require all cases to pass through the process.
Lawyers and clients may change their behavior if they expect to go through mandatory
settlement conferences in all cases; they may increase initial demands and engage in
more puffing as they dig in their heels for more settlement rounds. They may add to the
number of negotiation sessions by engaging in rountinized behavior to counter the
routinized behavior of the settlement officer. If the merits of the dispute are explored in
such conferences, it probably would be better practice to avoid settlement by the trial
judge, especially in bench trials. On the other hand, some of the settlement authority of
the third party may be directly related to the judge's power, control, or knowledge of the
specific case, and the value of the conference may be diminished if another person is
used.
Most importantly, we should be concerned about measuring what is accomplished in
settlement conferences. On the one hand are important quality control issues: Judges
with different personalities or role concepts may vary in the extent to which they use
particular devices to achieve efficiency or substantive justice. Since some judges may be
better at fostering settlement than others, should some judges or magistrates specialize in
settlement conferences? Should all judges and settlement officers be trained to conduct
the settlement process? On the other hand are important issues of substantive justice: Are
judges, relieved from the public scrutiny of a written decision, settling cases to serve their
[*513] own ends? Does the settlement conference compromise serious issues of public
importance by hiding cases that should be aired in open court and achieve binary results?
The settlement conference is a process that can be used to serve a number of different
ends. How we evaluate its utility depends on whether we are looking at the individual
dispute being settled, the numbers of cases on the docket, the quality of the results
(measured against cases that would have settled anyway and cases that would have gone
on to trial), the effect of the number and types of settlements on the number and types of
cases that remain in the system, or the alternatives available. These considerations do not
all point in the same direction. The evaluation of settlement conferences is something we
will have to keep watching.
We might ask the procedural question: Who should bear the burden of proof on
success? Critics like Fiss and Resnik assume that adjudication is the preferred process
and challenge the "settlers" to prove up their claims. Judges and judicial administrators
argue vehemently that settlement devices speed cases along and provide better
settlements, and assert that adjudication be used only when a strong need for it can be
shown. My own view is that settlement is now the norm. The pertinent question is how
can it be used most effectively (for the parties and for other users of the system) when
traditional adjudicators are brought into the process. Can judges, who are historically
neutral rule declarers, fact finders, and expeditors, perform this new function without a
new socialization process? As settlement conferences become mandatory, socialization
of settlement officers and research and evaluation of the settlement process must be
conducted simultaneously. If many judges use the sorts of "Lloyds of London" formulas
described above, additional training will be necessary to expose settlement officers to the
122
problematic aspects of these practices. Settlement officers will have to learn not how to
commodify and monetarize all issues, but rather how to identify alternative issues that the
parties may value differently, in the hope of reaching settlements that are fair, perhaps
norm-based, and that take account of the parties' needs. To the extent that I have
criticized the limited remedial imagination of courts, n117 [*514] the settlement
conference provides an opportunity to temper the rigidity of win/loss trials with flexible
solutions. Thus, on balance I support the movements toward mandatory settlement
conferences, as long as they are "properly" conducted by settlement officers sensitive to
the efficiency-quality problem. The usefulness of the mandatory settlement conference
as a procedural sevice to improve quality settlements should not blind us to some of the
dangers discussed above. Since settlement conferences are becoming mandatory, those
who criticize settlement should join the efforts to understand, study, and deal with the
problems presented by the process so that the interests of justice they value will not be
lost in the search for more efficient ways to administer the litigation process.
One thing is certain -- despite all the doubt about settlement conferences, they will
continue to be held, perhaps in increasing numbers, in both state and federal courts. It
behooves those of us who care about justice to be sure that those who conduct them
understand the impact and effects of what they do, and carefully consider whether the
overriding goal ought to be efficiency, case management, or better quality solutions. I
cast my vote for quality.
FOOTNOTES:
n1 See Burger, Isn't There a Better Way?, 68 A.B.A. J. 274 (1982); Sander, Varieties
of Dispute Processing, 70 F.R.D. 79, 111, 112-13 (1976). Marc Galanter has noted that
these are not separate processes but part of one larger process -- "litigotiation" -- in which
the boundaries between pure adjudication and negotiation are blurred. Galanter, ". . . A
Settlement Judge, Not a Trial Judge:" Judicial Mediation in the United States, 12 J.L. &
SOC'Y 1 (1985).
n2 See FED. R. CIV. P. 16; Fisher, Judicial Mediation: How It Works Through PreTrial Conference, 10 U. CHI. L. REV. 453 (1943); see also Title, The Lawyer's Role in
Settlement Conferences, 67 A.B.A. J. 592 (1981).
n3 "Compromise" is the key word in both bibliographic sources and in the
descriptions of what settlement conferences are supposed to encourage. Compromise is a
problematic term, connoting the necessity for both parties to give something up and reach
an agreement "in the middle." Settlements do not necessarily result in compromise, and
the settlement officer who begins by pushing for compromise has already severely
limited what may be achieved. See Menkel-Meadow, Toward Another View of Legal
Negotiation: The Structure of Problem Solving, 31 UCLA L. REV. 754 (1984); NOMOS
XII, COMPROMISE IN ETHICS, LAW, AND POLITICS (J. R. Pennock & J. Chapman
eds. 1979).
n4 Among these critics are Owen Fiss, whose article Against Settlement suggested the
title of this paper, and Judith Resnik. See Fiss, Against Settlement, 93 YALE L.J. 1073
(1984); Fiss, Out of Eden, 94 YALE L.J. 1669 (1985); Resnik, Managerial Judges, 96
HARV. L. REV. 376 (1982).
123
n5 I focus here on the mandatory settlement conference because it raises the full
gamut of issues addressed by the alternative dispute resolution movement. The
conference is a good example of hybrid settlement processes, exposing judges' "formal"
roles in an "informal" context.
n6 See, e.g., T. CHURCH, A. CARLSON, J. LEE & T. TAN, JUSTICE DELAYED:
THE PACE OF LITIGATION IN URBAN TRIAL COURTS (1978) [hereinafter cited as
T. CHURCH]; R. GILLESPIE, JUDICIAL, PRODUCTIVITY AND COURT DELAY
(1977); L. SIPES, MANAGING TO REDUCE DELAY (1980); Church, Civil Case
Delay in State Trial Courts, 4 JUST. SYS. J. 166 (1978); Flanders, Case Management in
Federal Courts: Some Controversies and Some Results, 4 JUST. SYS. J. 147 (1978);
Grossman, Kritzer, Bumiller & Mc Dougal, Measuring the Pace of Litigation in Federal
and State Trial Courts, 65 JUDICATURE 86 (1981); Rubin, The Managed Calendar:
Some Pragmatic Suggestions About Achieving the Just, Speedy, and Inexpensive
Determination of Civil Cases in Federal Courts, 4 JUST. SYS. J. 135 (1978); Ryan,
Lipetz, Lustien & Neubauer, Analyzing Court Delay-Reduction Programs: Why Do Some
Succeed?, 65 JUDICATURE 58 (1981).
n7 J. ADLER, W. FELSTINER, D. HENSLER & M. PETERSON, THE PACE OF
LITIGATION (1982); Church, The "Old and the New" Conventional Wisdom of Court
Delay, 7 JUST. SYS. J. 395 (1982); Luskin, Building a Theory of Case Processing Time,
62 JUDICATURE 115, 116 (1978).
n8 T. CHURCH, supra note 6; S. FLANDERS, CASE MANAGEMENT AND
COURT MANAGEMENT IN THE UNITED STATES DISTRICT COURTS (1977); M.
ROSENBERG, THE PRETRIAL CONFERENCE AND EFFECTIVE JUSTICE (1964);
see infra notes 44-59.
n9 See McThenia & Shaffer, For Reconciliation, 94 YALE L.J. 1660 (1985) (a
response to Fiss, which he attempts to rebut in Fiss, Out of Eden, 94 YALE L.J. 1669
(1985)).
n10 See Menkel-Meadow, supra note 3; Menkel-Meadow, Legal Negotiation: A
Study of Strategies in Search of a Theory, 1983 AM. B. FOUND. RESEARCH J. 905;
Menkel-Meadow, The Transformation of Disputes By Lawyers: What the Dispute
Paradigm Does and Doesn't Tell Us, 2 MO. J. DISPUTE RESOLUTION (forthcoming
1985).
n11 A polycentric dispute is one in which the issues are many, rather than one, and
the disputants see their differences as implicating more than one aspect of their
relationship. See Eisenberg, Private Ordering Through Negotiation: Dispute Settlement
and Rulemaking, 89 HARV. L. REV. 637 (1976); Fuller, Mediation -- Its Forms and
Functions, 44 S. CAL. L. REV. 305, 315-18 (1971).
n12 See McEwen & Maiman, Mediation in Small Claims Court: Achieving
Compliance Through Consent, 18 LAW & SOC'Y REV. 11 (1984); McEwen & Maiman,
Small Claims Mediation in Maine: An Empirical Assessment, 33 ME. L. REV. 237
(1981).
n13 See Abel, The Contradictions of Informal Justice, in THE POLITICS OF
INFORMAL JUSTICE 267 (R. Abel ed. 1982) see also Fiss, Against Settlement, supra
124
note 4; Resnik, supra note 4.
n14 See M. GALANTER, THE EMERGENCE OF THE JUDGE AS A MEDITOR
IN CIVIL CASES (1984).
n15 See F. LACEY, THE JUDGE'S ROLE IN THE SETTLEMENT OF CIVIL
SUITS (1977); H. WILL, R. MERHIGE & A. RUBIN, THE ROLE OF THE JUDGE IN
THE SETTLEMENT PROCESS (1983); Fox, Settlement: Helping the Lawyers to Fulfill
Their Responsibility, 53 F.R.D. 129 (1971); Peckham, The Federal Judge As Case
Manager: The New Role in Guiding A Case From Filing to Disposition, 69 CALIF. L.
REV. 770 (1981).
n16 See Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV.
1281, 1296-98 (1976); Eisenberg & Yeazell, The Ordinary and the Extraordinary in
Institutional Litigation, 93 HARV. L. REV. 465 (1980); Galanter, supra note 1; Resnik,
supra note 4, at 380-82. See the other articles in this issue for some of the difficulties
judges have in their "simple" role of adjudication. Schlag, Rules and Standards, 33
UCLA L. REV. 379 (1985); Wilson, The Morality of Formalism, 33 UCLA L. REV. 431
(1985).
n17 See Newman, Rethinking Fairness: Perspectives on the Litigation Process, 94
YALE L.J. 1643 (1985).
n18 Concern for an "insufficient number of cases" for quality rule making runs
counter to the more common argument that large caseloads make it difficult for judges to
devote the proper time and care to those cases that require serious deliberation and
opinion writing.
n19 Fiss, supra note 4, at 1087-88. However, there is no empirical evidence that
settlement rates have changed in response to increased settlement conference activity.
Settlement rates of about 90% are remarkably constant in civil litigation, criminal cases,
and family cases. See Galanter, Reading the Landscape of Disputes: What We Know and
Don't Know (and Think We Know) About Our Allegedly Contentious Society, 31 UCLA L.
REV. 4 (1984).
n20 See FED. R. CIV. P. 1; see also Fox, supra note 15, at 131.
n21 See D. HENSLER, A. LIPSON & E. ROLPH, JUDICIAL ARBITRATION IN
CALIFORNIA: THE FIRST YEAR (1981); K. SHUART, THE WAYNE COUNTY
MEDIATION PROGRAM IN THE EASTERN DISTRICT OF MICHIGAN (1984); K.
TEGLAND, MEDIATION IN THE WESTERN DISTRICT OF WASHINGTON (1984);
see also Levin, Court-Annexed Arbitration, 16 U. MICH. J.L. REF. 537 (1983).
n22 I associate much, though not all, of Owen Fiss' argument with the second part of
this claim; in other words, Fiss seems more concerned with "societal" justice and
precedential authority than with the justice offered the individual disputants.
n23 See Resnik, supra note 4.
n24 See Smith, A Warmer Way of Disputing: Mediation and Conciliation, 26 AM. J.
COMP. L. 205 (1978). In the context of this Essay, warmer means more direct, and more
"caring" forms of dispute resolution than adjudication - i.e., more direct party
involvement.
125
n25 P. EBENER, COURT EFFORTS TO REDUCE PRETRIAL DELAY 68-70
(1981); M. GALANTER, supra note 14.
n26 M. GALANTER, supra note 14, at 3-4 (quoting Judge Lauer of the Municipal
Court of New York, who discussed both conciliation and delay reduction motivations).
n27 Fox, supra note 15, at 133.
n28 See P. EBENER, supra note 25; M. GALANTER, supra note 14; Fox, supra note
15.
n29 Fox, supra note 15, at 133.
n30 Id. n.5.
n31 M. GALANTER, supra note 14; Pollack, Pre-Trial Conferences -- Eighth Circuit
Judicial Conference, 50 F.R.D. 427, 451-67 (1970); Tober, The Settlement Conference,
15 TRIAL L.Q. 42 (1980).
n32 M. GALANTER, supra note 14, at 5.
n33 See Annual Judicial Conference, Second Judicial Circuit of the United States,
101 F.R.D. 161, 221 (1983) [hereinafter cited as Second Circuit Judicial Conference];
Pollack, supra note 31; Sunderland, Theory and Practice of Pre-Trial Procedure, 21 J.
AM. JUDICATURE SOC'Y 125 (1937).
n34 See generally 1980 DIRECTOR AD. OFF. U.S. CTS. ANN. REP. I use the term
"absolutely increasing" to differentiate the question of numbers of lawsuits from whether
we are in fact more litigious. See Galanter, supra note 19, at 3.
n35 Second Circuit Judicial Conference, supra note 33, at 199.
n36 Connolly, Why We Do Need Managerial Judges, JUDGES' J., Fall 1984, at 34.
n37 See M. SCHWARTZ, LAWYERS AND THE LEGAL PROFESSION ch. 1 (2d
ed. 1985).
n38 The local rules are frequently even more coercive. See Resnik, Failing Faith:
Adjudicatory Procedure in Decline, 53 U. CHI. L. REV. (forthcoming 1986).
n39 Proposed Fed. R. Civ. P. 68, 98 F.R.D. 337, 361-63 (1983).
n40 See Federal Magistrates Act, 28 U.S.C. § § 631-639 (1982); see also C. SERON,
THE ROLES OF MAGISTRATES: NINE CASE STUDIES (1985); Seron, The
Professionalization of Parajudges: Findings from a Study of U.S. Magistrates, 70
JUDICATURE (forthcoming 1986); Note, Article III Constraints and the Expanding
Civil Jurisdiction of Federal Magistrates: A Dissenting View, 88 YALE, L.J. 1023
(1979).
n41 This is not as neat as it appears. In some courts magistrates are used as judges to
hear trials, if the parties agree, in order to reduce dockets. In other courts magistrates
perform other functions including acting as settlement officers. Roger Fisher has
suggested that some lawyers should specialize in negotiation, separate from litigation.
Fisher, What About Negotiation as a Specialty?, 69 A.B.A. J. 1221 (1983). The same
suggestion could be made with respect to judges and magistrates.
126
n42 See, e.g., P. EBENER, supra note 25; Aldisert, A Metropolitan Court Conquers
Its Backlog, 51 JUDICATURE 247 (1968); Title, supra note 2.
n43 See E. GREEN, THE MINI-TRIAL HANDBOOK (1982); Green, Marks &
Olson, Settling Large Case Litigation: An Alternate Approach, 11 LOY. L.A.L. REV. 493
(1978); Green, "Getting Out of Court" -- Private Resolution of Civil Disputes, 28 B.B.J.
11 (1984); see also S. GOLDBERG, E. GREEN & F. SANDER, DISPUTE
RESOLUTION (1985).
n44 M. ROSENBERG, supra note 8. Rosenberg's study involves three classifications
of personal injury cases in New Jersey in 1959-60. Originally designed as a "pure"
experiment between mandatorily pretried and nonpretried cases, a third sample was
created when the Supreme Court of New Jersey relaxed the experiment by instituting a
category of permissive pretrials available to lawyers on request. Thus, there were cases
in mandatory pretrial, voluntary pretrial, and nonpretrial in the completed study. Id. at
19.
n45 Id. at 45-50.
n46 See S. FLANDERS, supra note 8; see also S. FLANDERS, DISTRICT COURT
STUDIES PROJECT INTERIM REPORT (1976).
n47 Brazil, Improving Judicial Controls over the Pretrial Development of Civil
Actions: Model Rules for Case Management and Sanctions, 1981 AM. B. FOUND.
RESEARCH J. 873; L. SIPES, MANAGING TO REDUCE DELAY (1980).
n48 See Church, supra note 6.
n49 Luskin, supra note 7.
n50 See Church, supra note 7.
n51 Brazil, Settling Civil Cases: What Lawyers Want From Judges, JUDGES' J.,
Summer 1984, at 15 [hereinafter cited as Brazil, What Lawyers Want]; Brazil, Settling
Civil Cases: Where Attorneys Disagree About Judicial Roles, JUDGES' J., Summar
1984, at 21; Brazil, Settling Civil Cases: The Quest For Fairness, JUDGES' J., Summer
1984, at 33. For a more detailed discussion of Brazil's study, see infra notes 109-11 and
accompanying text.
n52 This is a chicken and egg problem. Are attitudes different in Northern California
because of the state rules or were the state rules possible because Northern California
lawyers were amenable to a mandatory settlement culture?
n53 Church, supra note 7, at 401-04.
n54 See Resnik, supra note 4, at 395-99.
n55 See Fiss, Against Settlement, supra note 4; see also Fiss, Forward: The Forms of
Justice, 93 HARV. L. REV. 1 (1979) (providing criteria for the evaluation of "quality of
justice").
n56 Connelly, supra note 36; Flanders, Commentary: Blind Umpires -- A Response to
Professor Resnik, 35 HASTINGS L.J. 505 (1984).
n57 See supra note 4.
127
n58 Connelly, supra note 36; Flanders, supra note 56.
n59 Resnik, supra note 4, at 423 n.184; Resnik, Managerial Judges and Court Delay:
The Unproven Assumptions, JUDGES' J., Winter 1984, at 8.
n60 See generally Church, supra note 7.
n61 YANKELOVICH, SKELLY & WHITE, INC., STUDY OF THE ROLE OF
COURTS 83 (1980).
n62 Brazil, What Lawyers Want, supra note 51, at 16.
n63 See infra notes 97-117 and accompanying text for a discussion of particular
judicial roles and techniques used in settlement conferences.
n64 See Brazil, What Lawyers Want, supra note 51, at 16.
n65 I have been focusing thus far on judge-managed settlement conferences. See
supra notes 25-43 and accompanying text for a discussion of the role of magistrates in
settlement conferences.
n66 Fiss, supra note 55, at 30.
n67 Resnik, supra note 4, at 445.
n68 Scholars are now beginning to address themselves to the question of whether it is
possible to develop a typology of cases or a framework of variables to specify in advance
which cases are appropriate for which dispute resolution devices. See Bush, Dispute
Resolution Alternatives and Achieving the Goals of Civil Justice: Jurisdictional
Principles for Process Choice, 1984 WIS. L. REV. 893.
n69 Fiss, Against Settlement, supra note 4, at 1075.
n70 Id. at 1077-78.
n71 See generally Coulson, Private Settlement For the Public Good, 66
JUDICATURE 7 (1982); Gnaizda, Secret Justice for the Priveleged Few, 66
JUDICATURE 6 (1982); Note, The California Rent-A-Judge Experiment: Constitutional
and Policy Considerations of Pay-As-You-Go Courts, 94 HARV. L. REV. 1592 (1981).
n72 Fiss, Against Settlement, supra note 4, at 1085.
n73 Id.
n74 See generally Chayes, supra note 16; Eisenberg & Yeazell, supra note 16;
Resnik, supra note 4.
n75 I have previously considered when negotiated settlements may not be
appropriate. See Menkel-Meadow, supra note 3, at 835-36. Some courts have explicitly
exempted certain categories of cases, for example constitutional cases, from mandatory
settlement conferences.
n76 The distinction between the private and the public is an elusive one. See
Symposium: The Public/Private Distinction, 130 U. PA. L. REV. 1289 (1982); see also
Grady, Settlement of Government and Private Cases: The Court, 50 ANTITRUST L.J. 43
(1981) (discussion of judges' duties in considering the public interest when accepting
settlements in privately conducted antitrust cases).
128
n77 See generally Menkel-Meadow, supra note 3.
n78 Fiss, Against Settlement, supra note 4, at 1087.
n79 It could be argued that judge involvement in settlement will produce more law or
norm-based results than in bilateral negotiations. With a third party "facilitating"
settlement in an environment of rule-based decision making, judicially managed
settlement conferences may increase the attention paid to law, rather than simple
attention paid to nuisance value or other estimates of cases. Seeking a "fair" solution,
mediated by a third party could lead to more law-based solutions. Eisenberg, supra note
11, at 655-65; Galanter, supra note 1, at 19-20.
n80 Fiss, Against Settlement, supra note 4, at 1084.
n81 See infra text accompanying notes 91-96.
n82 See McEwen & Maiman, supra note 12.
n83 See L. BACOW & M. WHEELER, ENVIRONMENTAL DISPUTE
RESOLUTION (1984).
n84 Resnik, supra note 4, at 445.
n85 Schwartz, The Other Things That Courts Do, 28 UCLA L. REV. 438 (1981);
Eisenberg & Yeazell, supra note 16; Chayes, supra note 16.
n86 In some states the supreme courts promulgate the procedural rules for rest of the
system and/or the ethical rules that regulate the practice of the profession.
n87 An example is Chief Justice Earl Warren's service on the Kennedy assassination
commission.
n88 Macaulay, Non-contractual Relations in Business: A Preliminary Study, 28 AM.
SOC. REV. 55 (1963); White, Contract Law in Modern Commercial Transactions, An
Artifact of Twentieth Century Business Life?, 22 WASHBURN L.J. 1 (1982).
n89 Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal
Change, 9 LAW & SOC'Y REV. 95 (1974).
n90 See the growing literature on the feminist critique of mediation in domestic
relations disputes that argues that women, with less power in our society traditionally,
will be taken advantage of in less formal processes. Lerman, Mediation of Wife Abuse
Cases: The Adverse Impact of Informal Dispute Resolution on Women, 7 HARV.
WOMEN'S L.J. 57 (1984); Rifkin, Mediation From a Feminist Perspective: Promise and
Problems, 2 LAW & INEQUALITY 21 (1984); Woods, Mediation: A Backlash to
Women: Progress on Family Law Issues 19 CLEARINGHOUSE REV. 431 (1985).
n91 These arguments have been made in greater detail in Menkel-Meadow, supra
note 3.
n92 See the discussion of Pareto optimal settlements in H. RAIFFA, THE ART AND
SCIENCE OF NEGOTIATION 138-39, 158-64 (1982).
n93 The Asbestos Claim Facility will be a good test of whether semi-"private"
settlements can effectively deal with important public issues of liability. See CENTER
FOR PUBLIC RESOURCES, PROCEEDINGS OF ANNUAL MEETING (1984).
129
n94 This argument applies to both ends of the economic spectrum. At one end, it is
argued, those with few economic resources are forced into separate dispute resolution
devices like neighborhood justice centers and away from the courts where significant
rights have most recently been won. See Abel, supra note 13. At the other end, wealthy
litigants may be able to buy their way out of the formal adjudication system by
purchasing judges, see sources cited supra note 71, or mini-trials, see sources cited supra
note 43.
n95 Fiss, Against Settlement, supra note 4, at 1075, 1087-88.
n96 See Green, supra note 43; Bush, supra note 68.
n97 See F. LACEY, supra note 15, at 3; Galanter, supra note 1.
n98 For a fuller description of judicial settlement activities, see sources cited supra
note 15; J. RYAN, A. ASHMAN, B. SALES & S. SHANE-DUBOW, AMERICAN
TRIAL JUDGES: THEIR WORK STYLES AND PERFORMANCES (1980); Kritzer,
The Judge's Role in Pretrial Case Processing: Assessing the Need for Change, 66
JUDICATURE 28 (1982); Shafroth, Pre-Trial Techniques of Federal Judges, 28 J. AM.
JUDICATURE SOC'Y 39 (1944). The Federal Judicial Center has been conducting a
study of judges' settlement activities.
n99 See H. WILL, R. MERHIGE & A. RUBIN, supra note 15. While many lawyers
report anecdotally that a firm trial date is the best device for settlement, especially when
one party has a stake in delay, data seem to suggest otherwise. See Galanter, supra note
1, at 12-13; Kritzer, supra note 98, at 35-36.
n100 See Fox, supra note 15.
n101 Wall & Schiller, Judicial Involvement in Pre-Trial Settlement: A Judge is Not a
Bump On a Log, 6 AM. J. TRIAL ADVOC. 27 (1982); see also Schiller & Wall, Judicial
Settlement Techniques, 5 AM. J. TRIAL ADVOC. 39 (1981).
n102 Wall & Schiller, supra note 101, at 37.
n103 Id.; see supra notes 44-48.
n104 H. WILL, R. MERHIGE & A. RUBIN, supra note 15, at 4.
n105 See H. RAIFFA, supra note 92.
n106 See generally R. FISHER & W. URY, GETTING TO YES (1981); H. RAIFFA,
supra note 92; Lowenthal, A General Theory of Negotiation Process, Strategy, and
Behavior, 31 U. KAN. L. REV. 69 (1982); Menkel-Meadow, supra note 3.
n107 See Menkel-Meadow, supra note 3.
n108 See Bedlin & Nejelski, Unsettling Issues About Settling Civil Litigation:
Examining "Doomsday Machines, Quick Looks" and Other Modest Proposals, 68
JUDICATURE 9 (1984); Wall & Schiller, supra note 101.
n109 See Brazil, What Lawyers Want, supra note 51.
n110 See id.
n111 Id. at 16 (emphasis in original).
130
n112 See Fox, supra note 15, at 148.
n113 See M. GALANTER, supra note 14.
n114 At least one commentator has made this observation with respect to private
negotiated settlement. Eisenberg, supra note 11, at 661-65.
n115 M. PROVINE, JUDICIAL SETTLEMENT TECHNIQUES (1985); Kritzer,
supra note 98; Wall & Schiller, supra note 101.
n116 See Title, supra note 2.
n117 See Menkel-Meadow, supra note 3.
131
United States Court of Appeals,
Second Circuit.
Patricia J. KOTHE, Plaintiff-Appellee,
v.
Dr. James W. SMITH, Dr. Andrew D. Kerr, Jr., M.D., P.C., and Andrew D. Kerr,
Defendants,
Dr. James W. Smith, Defendant-Appellant.
No. 1230, Docket 85-7024.
Argued May 22, 1985.
Decided Sept. 4, 1985.
Following settlement of medical malpractice claim after one day of trial, the United
States District Court for the Southern District of New York, Robert W. Sweet, J., directed
physician to pay $1,000 to patient's attorney, $1,000 to patient's medical witness, and
$480 to the clerk of court, and physician appealed.
The Court of Appeals, Van
Graafeiland, Circuit Judge, held that: (1) failure of physician to offer to settle claim for
$20,000, as federal District Court had urged during pretrial conference, did not warrant
imposition of sanctions against physician alone after claim was settled for $20,000 after
one day of trial, and (2) fact that physician's attorney changed his evaluation and decided
to settle claim after listening to patient's testimony during first day of trial did not warrant
imposition of sanctions against physician alone.
Remanded with instructions to vacate.
Before LUMBARD, VAN GRAAFEILAND and PIERCE, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
Dr. James Smith appeals from a judgment of the United States District Court for the
Southern District of New York (Sweet, J.), which directed him to pay $1,000 to plaintiffappellee's attorney, $1,000 to plaintiff-appellee's medical witness, and $480 to the Clerk
of the Court. For the reasons hereinafter discussed, we direct that the judgment be
vacated.
Patricia Kothe brought this suit for medical malpractice against four defendants, Dr.
Smith, Dr. Andrew Kerr, Dr. Kerr's professional corporation, and Doctors Hospital,
seeking $2 million in damages. She discontinued her action against the hospital four
months prior to trial. She discontinued against Dr. Kerr and his corporation on the
opening day of trial.
Three weeks prior thereto, Judge Sweet held a pretrial conference, during which he
132
directed counsel for the parties to conduct *669 settlement negotiations. Although it is
not clear from the record, it appears that Judge Sweet recommended that the case be
settled for between $20,000 and $30,000. He also warned the parties that, if they settled
for a comparable figure after trial had begun, he would impose sanctions against the
dilatory party. Smith, whose defense has been conducted throughout this litigation by
his malpractice insurer, offered $5,000 on the day before trial, but it was rejected.
Although Kothe's attorney had indicated to Judge Sweet that his client would settle for
$20,000, he had requested that the figure not be disclosed to Smith. Kothe's counsel
conceded at oral argument that the lowest pretrial settlement demand communicated to
Smith was $50,000. Nevertheless, when the case was settled for $20,000 after one day
of trial, the district court proceeded to penalize Smith alone. In imposing the penalty, the
court stated that it was "determined to get the attention of the carrier" and that "the
carriers are going to have to wake up when a judge tells them that they want [sic] to settle
a case and they don't want to settle it." Under the circumstances of this case, we believe
that the district court's imposition of a penalty against Smith was an abuse of the sanction
power given it by Fed.R.Civ.P. 16(f).
[1][2] Although the law favors the voluntary settlement of civil suits, ABKCO Music,
Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 997 (2d Cir.1983), it does not sanction
efforts by trial judges to effect settlements through coercion. Del Rio v. Northern Blower
Co., 574 F.2d 23, 26 (1st Cir.1978) (citing Wolff v. Laverne, Inc., 17 A.D.2d 213, 233
N.Y.S.2d 555 (1962)); see MacLeod v. D.C. Transit System, Inc., 283 F.2d 194, 195 n. 1
(D.C.Cir.1960); 89 C.J.S., Trial, § 577 at 355. In the Wolff case, cited with approval in
Del Rio, supra, the Court said:
We view with disfavor all pressure tactics whether directly or obliquely, to coerce
settlement by litigants and their counsel.
Failure to concur in what the Justice
presiding may consider an adequate settlement should not result in an imposition upon
a litigant or his counsel, who reject it, of any retributive sanctions not specifically
authorized by law.
17 A.D.2d at 215, 233 N.Y.S.2d 555. In short, pressure tactics to coerce settlement
simply are not permissible. Schunk v. Schunk, 84 A.D.2d 904, 905, 446 N.Y.S.2d 672
(1981); Chomski v. Alston Cab Co., 32 A.D.2d 627, 299 N.Y.S.2d 896 (1969). "The
judge must not compel agreement by arbitrary use of his power and the attorney must not
meekly submit to a judge's suggestion, though it be strongly urged." Brooks v. Great
Atlantic & Pacific Tea Co., 92 F.2d 794, 796 (9th Cir.1937).
[3][4] Rule 16 of the Fed.R.Civ.P. was not designed as a means for clubbing the parties-or one of them--into an involuntary compromise. See Padovani v. Bruchhausen, 293
F.2d 546, 548 (2d Cir.1961); Clark, To An Understanding Use of Pre-Trial, 1961, 29
F.R.D. 454, 456; Smith, Pretrial Conference--A Study of Methods, 1961, 29 F.R.D. 348,
353; Moskowitz, Glimpses of Federal Trials and Procedure, 1946, 4 F.R.D. 216, 218.
Although subsection (c)(7) of Rule 16, added in the 1983 amendments of the Rule, was
designed to encourage pretrial settlement discussions, it was not its purpose to "impose
settlement negotiations on unwilling litigants." See Advisory Committee Note, 1983, 97
133
F.R.D. 205, 210.
[5] We find the coercion in the instant case especially troublesome because the district
court imposed sanctions on Smith alone. Offers to settle a claim are not made in a
vacuum.
They are part of a more complex process which includes "conferences,
informal discussions, offers, counterdemands, more discussions, more haggling, and
finally, in the great majority of cases, a compromise." J. & D. Sindell, Let's Talk
Settlement 300 (1963). In other words, the process of settlement is a two-way street, and
a defendant should not be expected to bid against himself. In the instant case, Smith
never received a demand of less than $50,000. Having received no indication from
Kothe that an *670 offer somewhere in the vicinity of $20,000 would at least be given
careful consideration, Smith should not have been required to make an offer in this
amount simply because the court wanted him to.
[6] Smith's attorney should not be condemned for changing his evaluation of the case
after listening to Kothe's testimony during the first day of trial. As every experienced trial
lawyer knows, the personalities of the parties and their witnesses play an important role
in litigation. It is one thing to have a valid claim; it is quite another to convince a jury
of this fact. It is not at all unusual, therefore, for a defendant to change his perception of
a case based on the plaintiff's performance on the witness stand. We see nothing about
that occurrence in the instant case that warranted the imposition of sanctions against the
defendant alone.
Although we commend Judge Sweet for his efforts to encourage settlement negotiations,
his excessive zeal leaves us no recourse but to remand the matter with instructions to
vacate the judgment.
771 F.2d 667, 2 Fed.R.Serv.3d 864
134
CLASS 6: THE JUDGE'S ROLE AT TRIAL
Most of you are placed with trial level judges. Presiding over trials is a complex,
and sometimes frustrating, function.
In a frequently quoted passage, the Court of
Appeals for the 2nd Circuit stressed that the judge "need not sit like a 'bump on a log'
throughout the trial"; 4 yet, in the adversary system, the attorneys have the more
apparently active role in trying a case. What is the judge's role during a trial and what are
the limits of judicial intervention?
In a jury trial, the judge typically structures the selection of the jury, instructs the
jury on the law, and controls the flow of the trial and admission of evidence. In a nonjury trial, the judge also evaluates the credibility of witnesses and assesses the evidence
to "find the facts." The judge is expected to produce a just, speedy and economical trial.
It sounds straightforward, and many judges make it look easy, but presiding over a trial
and maintaining complete impartiality is a difficult, if not impossible, task.
Think about the number and variety of decisions the judge is called upon to make
during the course of a trial. The pace of trial often requires instantaneous rulings from
the bench on legal and evidentiary issues. Throughout the trial, not just during the
charge, the judge instructs the jury on the law. Knowing many areas of the law is only
one part of the decision-making process. Frequently, the judge has to make a factual
determination before making a legal ruling, so that even in a jury trial, the judge acts as
fact-finder. The decision making process is complicated:
[To determine the facts the trial judge must evaluate witnesses.] He must do his
best to ascertain their motives, their biases, their dominating passions and
interests, for only so can he judge of the accuracy of their narrations. He must
also shrewdly observe the stratagems of the opposing lawyers, perceive their
4United
States v. Pisani, 773 F.2d 397, 403 (2d Cir. 1985).
135
efforts to sway him by appeals to his predilections. He must cannily penetrate
through the surface of their remarks to their real purposes and motives. He has an
official obligation to become prejudiced in that sense. Impartiality is not
gullibility. Disinterestedness does not mean child-like innocence. If the judge did
not form judgments of the actors in those court-house dramas called trials, he
could never render decisions.5
The judge also controls the flow of the trial. The procedural rules leave the judge
broad discretion in controlling the conduct of trials within her courtroom.6 Also, judges
have inherent power to control the conduct of attorneys, parties and witnesses during
trial. Judges may determine the structure and length of the voir dire, the order and
number of witnesses, the length of witness examinations and attorney argument, and the
structure of the trial itself, as illustrated by the excerpt from A CIVIL ACTION in the
readings. In People v. Andre Arnold, the New York Court of Appeals recently joined the
federal courts and the vast majority of states in even permitting trial judges to call
witnesses under limited circumstances.7
The judge also may control seemingly mundane matters such as where attorneys
may stand when questioning a witness, how evidence and exhibits will be handled, when
and how matters will be discussed outside the presence of the jury, and how objections
may be made. For examples, look at the list of trial conduct rules United States District
Judge Shira A. Scheindlin provides to trial counsel. Think about what sorts of trial
procedures your judge employs and how she communicates them to attorneys. Begin to
consider how a judge's control and structure of a trial affects the lawyering and the
5JEROME FRANK, COURTS ON
6See,
7John
TRIAL 414-415 (1950).
e.g., Fed. R. Civ. P. 39, 40, 42, and 47.
Caher, Judges May Call Witnesses Sparingly in Criminal Cases, N.Y.L.J., June 5,
2002.
136
outcome of the trial.
Judges must perform all these trial functions impartially. What constitutes
impermissible partiality? Jerome Frank sums up the quandary "...[T]here can be no fair
trial before a judge lacking in impartiality and disinterestedness. If, however, 'bias' and
'partiality ' be defined to mean the total absence of preconceptions in the mind of the
judge, then no one has ever had a fair trial and no one ever will."8 So how do judges
with different styles and temperaments ensure litigants fair, fast, and economical trials
while presiding impartially? The cases included in the readings will help you determine
when a judge's participation during a trial has exceeded her discretion by showing
partiality to one side.
8Id.
at 413.
137
Class 6: NOTES & PROBLEMS
1. Trial Observation. If you have not had the opportunity to observe a trial, try to do so
before class. Think about the role your judge plays during trial.
a. Does the judge have any standard operating procedures for trial? How does she
communicate them to the attorneys? How does the judge control the attorneys?
Do the judge's techniques vary depending on the style and competence of the
lawyers?
b. Have you seen the judge limit the attorneys' voir dire, presentation of witnesses,
or argument? If so, what effect do you think the judge's rulings had on the
lawyering and the outcome of the case?
2. The Judge's Interaction with the Jury. What is your judge's demeanor before the
jury? Does it differ from his/her demeanor outside the presence of the jury? What
role(s) does the judge play with the jury?
3. People v. Nelson Video. We will watch a video tape of portions of the trial of The
People of the State of New York v. Nelson and discuss the judge's conduct of the trial
including his demeanor, the techniques he used to control counsel, and his
questioning of witnesses. Think about how the judge's interaction with the defense
attorney may have appeared to the jury. Compare it to the interaction your judge has
with attorneys during trial and to the behavior described in the cases in the readings.
138
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HONORABLE SHIRA A. SCHEINDLIN
CONDUCT OF COUNSEL AT TRIAL
When appearing in this Court, unless excused by the Court, all counsel shall
(including, where the context applies, all persons at counsel table):
1. Stand as Court is opened, recessed or adjourned.
2. Stand when addressing, or being addressed by the Court.
3. Stand at the lectern while examining any witness; except
that counsel may approach the Clerk’s desk or the witness for purposes of handling
or tendering exhibits. Do not introduce yourself to adverse witnesses. Commence
your cross-examination without preliminaries.
4. Address all remarks to the Courts, not to opposing counsel.
5. Avoid disparaging personal remarks or acrimony toward opposing counsel and remain
wholly detached from any ill feeling between the litigants or witnesses.
6. Refer to all persons, including witnesses, other counsel and parties by their surnames
and not by their first or given names.
7. Only one attorney for each party shall examine, or cross examine each witness. The
attorney stating objections, if any, during direct examination, shall be the attorney
recognized for cross examination.
8. Counsel should request permission before approaching the bench; and any document
counsel wish to have the Court examine should be handed to the Clerk.
9. Any exhibit offered in evidence should, at the time of such offer, be handed to
opposing counsel. At the end of trial, counsel should make sure they have all of their
exhibits. The Clerk is not responsible for them.
10.If you intend to question a witness about a group of documents, avoid delay by having
all
of the documents with you when you start the examination.
11.In making objections counsel should state only the legal grounds for the objection and
should withhold all further comment or argument unless elaboration is requested by
the
Court.
12.In examining a witness counsel shall not repeat or echo the answer given by the
witness.
13. Offers of, or requests for, a stipulation should be made privately, not within the
145
hearing’
of the jury.
14. In opening statements and in argument to the jury, counsel shall not express personal
knowledge or opinion concerning any matter in issue.
15. Counsel shall admonish all persons at counsel table that gestures, facial expressions,
audible comments, or the like, as manifestations of approval or disapproval during
the
testimony of witnesses, or at any other time, are absolutely prohibited.
16. Sidebar conferences will be kept to a minimum. This Court agrees with Standard 5.9
of
the Standards suggested by the American Bar Association Advisory Committee on the
Judge’s Function (1972):
The trial judge should be alert to the distracting effect on the jury during the taking of
evidence of frequent bench conferences between counsel and the judge out of the hearing
of the jury, and should postpone the requested conference to the next recess except when
an immediate conference appears necessary to avoid prejudice.
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United States Court of Appeals,
Second Circuit.
UNITED STATES of America, Appellee,
v.
Joseph R. PISANI, Defendant-Appellant.
No. 686, Docket 84-1330.
Argued Jan. 28, 1985.
Decided Sept. 12, 1985.
Defendant was convicted in the United States District Court for the Southern District of
New York, David N. Edelstein, J., of ten counts of mail fraud, four counts of income tax
evasion, and four counts of filing false income tax returns, and he appealed. The Court
of Appeals, George C. Pratt, Circuit Judge, held that: (1) trial judge's conduct did not
deprive defendant of a fair trial; (2) defendant's indictment by grand jury, whose tenure
had been extended pursuant to 1983 amendment to relevant Criminal Rule, was not
invalidated by manner in which amendment authorizing that extension had been adopted;
but (3) refusal to submit to jury issue as to whether political contributions received by
defendant and used by him for personal, rather than political, purposes constituted
nontaxable gifts or taxable income constituted plain error requiring reversal of income tax
convictions; and (4) defendant, a former state senator who used campaign funds for
personal purposes, could not be convicted of mail fraud.
Affirmed in part, reversed in part.
Before NEWMAN, KEARSE, and PRATT, Circuit Judges.
GEORGE C. PRATT, Circuit Judge:
Joseph R. Pisani appeals from a judgment of conviction entered on jury verdicts after a
five-week trial before Hon. David N. Edelstein in the United States District Court for the
Southern District of New York. The jury acquitted Pisani on eleven counts of mail
fraud, and could not agree on ten counts relating to a real estate transaction, but convicted
him on ten other counts of mail fraud, four counts of income tax evasion, and four counts
of filing false income tax returns. Judge Edelstein sentenced Pisani to a total of four
years' imprisonment followed by four years' probation, imposed fines totaling $69,000,
and, on one of the mail fraud counts, required restitution to a former law client of
defendant in the amount of $3,604.
On appeal Pisani raises numerous issues, of which the following require discussion: (1)
whether Judge Edelstein's conduct deprived Pisani of a fair trial; (2) whether the grand
jury that returned the indictment was lawfully constituted; (3) whether the trial court
erred in instructing the jury that political contributions used for personal purposes
151
constituted taxable income; and (4) whether Pisani's conduct in using campaign funds for
personal purposes and then falsely reporting those personal expenses as campaign
expenditures violated the federal mail fraud statute.
We reverse and dismiss the nine mail fraud counts that are based on filing false reports
of campaign expenditures (counts 12, 13, 15, 16, 18, 22, 23, 25, and 26), and we reverse
and remand for a new trial on the income tax charges (counts 32 through 39). We affirm
the conviction on the mail fraud charge that involved funds of one of Pisani's former
clients (count 28).
BACKGROUND FACTS
Pisani was originally elected to the New York State Senate for the 62nd District in
Westchester County in 1972 and was reelected to that position every two years up
through 1982. During that ten-year period Pisani also campaigned for the offices of New
York State Attorney General, Westchester County Executive, and Governor of New York
State.
In addition to his public activities, Pisani maintained an active law practice in association
with two other lawyers in Westchester County, first as a partner from 1976 to 1980, and
thereafter until 1983, as counsel to the firm.
PROCEEDINGS BELOW
On March 8, 1984, the government filed a 39-count indictment against defendant and
one Kathryn Godfrey. For discussion purposes, the charges of the indictment can be
viewed in four groups:
1. Mallon real estate transaction.
Counts 1 through 10 focused on an alleged transaction by which Pisani purchased a
summer home from Joseph and Roberta Mallon, and compensated them by providing
Joseph Mallon with a no-show job *401 in a state agency. Included in these counts were
charges of mail fraud against the state agency, perjury, obstruction of justice, subornation
of perjury, and conspiracy to commit mail fraud and perjury and to obstruct justice.
Godfrey was named as a codefendant on two counts of perjury (counts 6 and 7), and one
count of obstruction of justice (count 9). In all other counts of the indictment Pisani was
the only defendant.
2. Campaign fund mail fraud.
Counts 11 through 26 charged defendant with mail fraud based on his use of campaign
funds for personal purposes and filing false reports of his campaign expenditures.
3. Law practice mail fraud.
152
Counts 27 through 31 charged Pisani with mail fraud in his dealings with his law
partners and clients.
4. Tax violations.
Counts 32 through 39 charged Pisani with four years of income tax violations.
After a one-month trial and 3 1/2 days of deliberations the jury could not agree on any of
the ten counts relating to the Mallon real estate transaction; it found him guilty on nine
and acquitted him on seven of the campaign fund mail fraud counts; it found him guilty
on one and acquitted him on four of the law practice mail fraud counts; and it found him
guilty on all eight of the income tax counts.
As to defendant Godfrey, who is not a party to this appeal, the jury acquitted her on one
count of perjury, and could not agree on the other two charges brought against her.
On the nine campaign fund mail fraud convictions Judge Edelstein sentenced Pisani to
nine concurrent three-year prison terms and nine $1,000 fines. On the law practice mail
fraud conviction, which involved a client's escrow account, Judge Edelstein sentenced
Pisani to a three-year prison term, but suspended execution of sentence and imposed
probation of four years to commence on his release from prison, on condition that Pisani
pay restitution of $3,604 to the defrauded former client. On the four income tax evasion
convictions, Judge Edelstein sentenced Pisani to four three-year prison terms to run
concurrently with each other and with the nine mail fraud jail sentences, plus four
$10,000 fines.
On the four convictions for filing false income tax returns, Judge
Edelstein sentenced Pisani to four one-year prison terms, to run concurrently with each
other, but consecutively to the other sentences, plus four $5,000 fines.
Overall,
therefore, Pisani was sentenced to four years in prison to be followed by four years'
probation, fined a total of $69,000, and required to pay restitution of $3,604.
ISSUES
On appeal Pisani raises a variety of claims. Some of them are rendered moot by our
conclusions on other issues; others have been carefully reviewed and found to be lacking
both in merit and jurisprudential significance. Of the claims discussed below two are
directed at all counts on which Pisani was convicted: (1) that the trial judge's misconduct
deprived him of a fair trial, and (2) that the indicting grand jury was not legally
constituted. In addition, Pisani attacks his convictions of mail fraud by use of the mails
to embezzle, divert, and convert money from his campaign funds and concealment of the
diversions and embezzlement on the ground that his conduct as proved is not proscribed
by the federal mail fraud statute. He attacks all of his tax convictions, on the ground that
the trial court erred in removing from the jury the issue of whether or not his campaign
contributions were gifts and therefore not includable in gross income. Pisani raises no
argument on appeal, however, that is directed particularly at his conviction on count 28 of
mail fraud with respect to the client's escrow account.
153
DISCUSSION
A. Judge Edelstein's Conduct.
Pisani contends that Judge Edelstein's "hostile and disparaging" treatment of defendant,
*402 defense counsel, and defense witnesses during the trial, combined with his
"coercive and demeaning" treatment of the jurors, deprived Pisani of his constitutional
rights to a fair trial, due process, and the effective representation of counsel. This
alleged judicial misconduct, he claims, entitles him to a new trial.
[1][2] Reviewing Pisani's claim is difficult because, of course, we are unable to observe
directly the interaction of personalities during trial; our review is necessarily limited to "
'the cold black and white of a printed record' ". United States v. Grunberger, 431 F.2d
1062, 1067 (2d Cir.1970) (quoting United States v. Ah Kee Eng, 241 F.2d 157, 161 (2d
Cir.1957)). For this reason, we have no handy tool with which to gauge automatically
whether the trial judge's conduct has improperly tipped the balance of the trial against the
defendant. United States v. Nazzaro, 472 F.2d 302, 304 (2d Cir.1973). Our disposition
of the claim must flow from careful deliberation after close scrutiny of the record. Our
role, however, is not to determine whether the trial judge's conduct left something to be
desired, or even whether some comments would have been better left unsaid. Rather, we
must determine whether the judge's behavior was so prejudicial that it denied Pisani a
fair, as opposed to a perfect, trial. United States v. Robinson, 635 F.2d 981, 984 (2d
Cir.1980), cert. denied, 451 U.S. 992, 101 S.Ct. 2333, 68 L.Ed.2d 852 (1981). If we
conclude that the conduct of the trial had so impressed the jury with the trial judge's
partiality to the prosecution that this became a factor in determining the defendant's guilt,
then the convictions should be reversed. United States v. Guglielmini, 384 F.2d 602, 604
(2d Cir.1967). In light of these general standards we turn to Pisani's various complaints
about Judge Edelstein's conduct.
1. Rulings on objections.
[3][4] Pisani first objects to the manner in which Judge Edelstein ruled on objections
throughout the trial, emphasizing that Pisani's counsel usually came out on the losing
side. Of course, a trial judge must be ever conscious of the special attention and respect
he commands from the jury and must exercise caution to maintain an appearance of
impartiality. United States v. Vega, 589 F.2d 1147, 1153 (2d Cir.1978). But a trial
judge must rule on countless objections, and a simple numerical tally of those sustained
and overruled, one which here favors the government, is not enough to establish that the
scales of justice were tipped against a defendant. Of far greater importance is the
correctness and fairness of the judge's evidentiary rulings.
[5] After carefully reviewing the trial transcript we conclude that Judge Edelstein's
rulings on objections from both sides were generally sound. Pisani has not pointed to any
prejudicially erroneous rulings, and lacking such support, we will not fault the trial judge
simply because defense counsel would have preferred a more favorable scorecard. There
were numerous instances when the trial judge did sustain defense objections. Moreover,
if defense counsel objects when objections are unwarranted--as he did on numerous
154
occasions--he can hardly complain that "it is hard to find a defense objection that was
sustained." Similarly, if defense counsel pursues an objectionable line of questioning, he
can hardly cry "foul" when the judge sustains a government objection or even excludes
the testimony sua sponte.
2. Requiring written argument on objections.
[6] Defendant next complains that "the most shocking illustration of the trial court's
prejudicial partiality was his imposition on defense counsel--and only defense counsel -of the novel and totally unfair procedural requirement that objections be made by means
of written notes". In the first place, this assertion is untrue; Judge Edelstein also
required the government to write out its objections on occasion. Second, Judge Edelstein
required written submissions only with respect to extended arguments; as the record
shows, he entertained *403 repeated oral objections from both sides, and allowed brief
side bar conferences at the request of either party. Third, Judge Edelstein adopted this
procedure to avoid distracting the court and jury from the examination of witnesses, and
we have long recognized that a trial judge has wide discretion to adopt methods designed
to expedite a trial. United States v. Dardi, 330 F.2d 316, 330 (2d Cir.), cert. denied, 379
U.S. 845, 85 S.Ct. 51, 13 L.Ed.2d 50 (1964). This procedure effectively served that end.
Finally, Pisani claims prejudice because the practice allowed evidence to be received and
absorbed by the jury before the court could make a considered ruling on the objection.
Aside from the fact that the trial judge could have cured most prejudicial effects by
proper instructions to the jury, the defendant points to no instance, nor do we find any,
where prejudicial evidence was erroneously revealed to the jury under this practice and
then later excluded.
3. Questioning defense witnesses.
[7][8][9] Pisani also contends that Judge Edelstein exceeded the proper scope of his
duties by interrupting defense counsel to ask questions of both Pisani and the other
defense witnesses. But as Judge Edelstein colorfully informed this jury, a trial judge
need not sit like "a bump on a log" throughout the trial. He has an active responsibility
to insure that issues are clearly presented to the jury. Vega, 589 F.2d at 1152. Thus, the
questioning of witnesses by a trial judge, if for a proper purpose such as clarifying
ambiguities, correcting misstatements, or obtaining information needed to make rulings,
is well within that responsibility. United States v. Bronston, 658 F.2d 920, 930 (2d
Cir.1981), cert. denied, 456 U.S. 915, 102 S.Ct. 1769, 72 L.Ed.2d 174 (1982). Here,
some of the interruptions were invited by defense counsel's often ambiguous or repetitive
questions. See United States v. Pellegrino, 470 F.2d 1205, 1207 (2d Cir.1972), cert.
denied, 411 U.S. 918, 93 S.Ct. 1556, 36 L.Ed.2d 310 (1973).
Even though it is
sometimes difficult to tell from the written record whether a judge's questions unfairly
disparaged the defense, see Grunberger, 431 F.2d at 1067, it does not appear here that the
judge's limited questioning of either the defendant or the other defense witnesses
exceeded any proper bounds or conveyed to the jury any impression of the judge's belief
in the defendant's probable guilt. See United States v. De Sisto, 289 F.2d 833, 835 (2d
155
Cir.1961).
4. Criticisms of counsel.
Somewhat more troubling for us is the abrupt tenor of some of Judge Edelstein's
instructive and evaluative comments to defense counsel. We have repeatedly insisted
that a trial judge display patience with counsel "so as not to prejudice a party or create an
impression of partisanship before the jury", see, e.g., United States v. Pellegrino, 470
F.2d at 1207. However, we must also keep in mind the enormous pressures placed upon
our trial judges by their ever-expanding dockets and the increasing complexity of modern
trials, and we recognize that those pressures, particularly in a protracted case, can on
occasion cause even the most imperturbable judge to vent irritation or impatience that
ideally should be suppressed. See United States v. Nazzaro, 472 F.2d at 304.
[10] With distressing frequency, however, Judge Edelstein made comments in the jury's
presence that could better have been avoided, such as needlessly characterizing counsel's
questions or statements as "improper" and "completely without merit". He also may
have suggested to the jury a negative perception of defense counsel's competence by
directing him to "stop mumbling", by stating that a particular line of questioning was "a
bore and a waste of time", and by implying several times that counsel was misleading the
jury.
[11] While we regard such unnecessary barbs most seriously, we have carefully
evaluated the incidents complained of and, on balance, have concluded that they did not
deprive defendant of a fair trial. At least some of Judge Edelstein's comments *404 were
provoked by counsel's continuing to do things that the court had specifically cautioned
him to avoid, a factor that properly may be taken into account to determine whether
defendant was prejudiced. Robinson, 635 F.2d at 985.
Moreover, as serious as some of the incidents are, they occupy but a very small part of
this extensive trial record. Most importantly, Judge Edelstein at least partially mitigated
the possibly prejudicial impact of his comments by explaining to the jury several times
that his admonishments of counsel should have no bearing on their deliberations or
determinations. See id. Fortunately, he also saved his most intemperate comments for
delivery outside the presence of the jury. Viewing the record as a whole, therefore, we
conclude that while some of the trial judge's comments and behavior toward defense
counsel were regrettable, they did not convey to the jury an impression of partiality
toward the government to such an extent that it became a factor in their deliberations.
5. Treatment of jurors.
We find no support in the record for Pisani's assertion that Judge Edelstein treated the
jurors in a demeaning fashion.
On the contrary, Judge Edelstein seems to have
established a friendly rapport with the jurors and made reasonable efforts to help them
deal with the inconvenience attendant to jury service in any lengthy trial.
156
[12] Finally, we reject Pisani's assertion that Judge Edelstein coerced a verdict by his
statements to the jurors on Thursday, the third day of deliberations, when he informed
them that they would have to deliberate through the weekend if they did not reach a
verdict by Friday. Although some of his comments concerning the difficulties faced by
judges, court personnel, and others involved in the trial process could better have been
omitted, nothing he did say exceeded a permissible level of encouragement to the jurors
to responsibly pursue their duties as jurors. See United States v. Bermudez, 526 F.2d 89,
100 (2d Cir.1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976).
In short, we reject Pisani's claim that Judge Edelstein's conduct at trial, whether viewed
as separate incidents or as a whole, deprived Pisani of a fair trial or effective
representation of counsel.
B. Validity of the indictment.
Pisani attacks the validity of his indictment, claiming that the term of the grand jury had
expired because the rule under which it had been extended was illegally adopted. This
attack rests on an intricate chain of reasoning. The grand jury that indicted Pisani was
originally empanelled on March 23, 1982, for a term of 18 months to expire on
September 23, 1983, the maximum term permitted by Fed.R.Crim.P. 6(g).
An
amendment to rule 6(g), which permits a six-month extension of a grand jury's term if the
district court determines that the extension was "in the public interest", became effective
on August 1, 1983. By order dated August 18, 1983, Chief Judge Motley of the
Southern District of New York extended the term of Pisani's grand jury for six months to
March 23, 1984. During the extension period the grand jury returned the original and
first superseding indictments against Pisani, as well as the second superseding indictment
on which he was tried.
Rule 6(g) was amended by the "report and wait" procedure set forth in 18 U.S.C. §
3771. Under that procedure, the Supreme Court is authorized to prescribe rules of
"pleading, practice and procedure" for criminal cases. The rules are reported to congress
and take effect after 90 days, unless rejected, postponed or amended by congress.
Relying upon Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed.
397 (1956), and United States v. Fein, 504 F.2d 1170, 1173- 79 (2d Cir.1974), Pisani
argues that he has a substantive right to be indicted by a grand jury that is independent
from prosecutorial control and that the length of the grand jury's term is directly related to
its independence. Pisani *405 reasons that since the tenure of the grand jury is thus a
matter of substance, and not one of "pleading, practice or procedure", any attempted
amendment by the "report and wait" procedure was invalid. He concludes that since the
life of the grand jury had been extended pursuant to an invalidly adopted rule, his
indictment was returned by a grand jury whose term had expired, and, under United
States v. Fein, must be dismissed.
One flaw in Pisani's reasoning rests with his attempted characterization of the tenure of a
grand jury as substantive, rather than procedural. Although we expressed concern in
157
United States v. Fein, 504 F.2d at 1179, that grand jurors "might by dint of longer service
become themselves arms of the state instead of representatives of the citizenry", we did
not thereby create any substantive right to indictment within 18 months.
Indeed,
congress itself in 18 U.S.C. § 3331 has provided that the term of a grand jury empanelled
pursuant to the Organized Crime Control Act may be extended to a maximum of 36
months, and we have upheld the validity of that statute. United States v. Schwartzbaum,
527 F.2d 249, 256 (2d Cir.1975), cert. denied, 424 U.S. 942, 96 S.Ct. 1410, 47 L.Ed.2d
348 (1976).
A further flaw in Pisani's argument is the fact that former rule 6(g) which established the
18 month term for a grand jury was adopted by the same "report and wait" procedure
used to enact the challenged 1983 amendment. Pisani responds that the former rule
merely restated law already on the books, 28 U.S.C. § 421, which had been enacted by
express congressional action, but we see no significance to this historical fact. Its very
nature, as well as its inclusion in the Federal Rules of Criminal Procedure (emphasis
added), demonstrates the procedural character of the amendment to rule 6(g), which was
adopted after a history of congressional experimentation with grand jury tenure. See
United States v. Fein, 504 F.2d at 1173-9.
[13] We conclude that Pisani's indictment by a grand jury whose tenure had been
extended pursuant to the 1983 amendment of rule 6(g) was not invalidated by the manner
in which the amendment authorizing that extension had been adopted.
C. The erroneous charge on income.
Pisani contends that Judge Edelstein's jury instructions on the income tax counts
improperly removed from the jury's consideration "the question of whether gifts to
Pisani's campaign funds yielded taxable income to him when spent on personal items."
To prove a substantial tax due in this criminal case the government followed the
"specific items" approach, whereby it presented evidence of specific items of claimed
taxable income that Pisani had received but not reported on his relevant returns. With
respect to his campaign contributions, the specific items relied upon by the government
were those funds that Pisani had taken from his campaign funds and used for personal,
rather than political, purposes.
One of Pisani's central contentions at trial was that the money contributed to his
campaign by his supporters constituted nontaxable gifts to him because the money was
donated without restriction as to use. Four of Pisani's witnesses testified substantially to
that effect. One government witness, a former law partner of Pisani, testified that when
he gave Pisani money he expected it would be used for campaign purposes. Pisani,
himself, testified that he believed that a number of the contributions were unrestricted
gifts that he was not required to report as income. A factual issue was thus generated as
to whether the campaign funds Pisani used personally came from contributions and gifts
that were unrestricted as to use. If so, should they have been excluded from Pisani's
taxable income?
158
The Internal Revenue Code defines income to include all income received from any
source, except as otherwise provided. 26 U.S.C. § 61. It is "otherwise provided",
however, that the value of property acquired *406 by gift is not included in gross income.
26 U.S.C. § 102(a).
The fourth and sixth circuits have held that any funds contributed to a recipient's political
campaign and then diverted to his personal use are income taxable to the recipient.
United States v. Miriani, 422 F.2d 150, 152 (6th Cir.), cert. denied, 399 U.S. 910, 90
S.Ct. 2199, 26 L.Ed.2d 561 (1970) (criminal); United States v. Jett, 352 F.2d 179, 182
(6th Cir.1965), cert. denied, 383 U.S. 935, 86 S.Ct. 1063, 15 L.Ed.2d 852 (1966)
(criminal); O'Dwyer v. Commissioner, 266 F.2d 575, 585-86 (4th Cir.), cert. denied, 361
U.S. 862, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959) (civil).
In reaching their conclusions in Miriani, Jett, and O'Dwyer, these courts all relied on a
1954 revenue ruling in which the IRS had declared that any political gift "used by a
candidate or other individual for personal use constitutes taxable income to such
candidate or other individual for the year in which the funds are so diverted." Rev.Rul.
54-80, 1954-1 C.B. 11, 12. In Jett, the court also cited Reichert v. Commissioner, 19 T.C.
1027, (1953), which stated a similar proposition, see 19 T.C. at 1038-39.
In 1968, however, the I.R.S. modified its position. It abandoned its absolute, inflexible
rule that made taxable all personal diversions of campaign funds and adopted a rebuttable
presumption focused upon the donors' intent. In Rev.Proc. 68-19 it stated that
The service will presume in the absence of evidence to the contrary that contributions
to a political candidate are political funds which are not intended for the unrestricted
personal use of such recipient. If it can be shown that the funds were intended for the
unrestricted personal use of the political candidate, then the Service will apply the
principles set forth in Commissioner v. Mose Duberstein, et al., 363 U.S. 278 [80 S.Ct.
1190, 4 L.Ed.2d 1218] (1960) * * * to determine whether or not the funds may [as
gifts] be excluded from his gross income under section 102 of the Code.
Rev.Proc. 68-19, 1968-1 C.B. 810, 811.
Quoting Rev.Proc. 69-19 in Stratton v. Commissioner, 54 T.C. 255, 280 (1970), the tax
court held that "[t]he line between an outright gift and a campaign contribution is a very
thin line." The court then analyzed whether funds received by Stratton, the former
governor of Illinois, constituted untaxable gifts. Based on the unequivocal testimony of
several individuals that they had intended "to make outright gifts to [Stratton] to do with
as he pleased with no strings attached", the court found that these transfers "were made
from a 'detached and disinterested generosity,' 'out of affection, respect, admiration,
charity or like impulses[,]' Commissioner v. Duberstein, 363 U.S. 278, 287, 80 S.Ct.
1190, 1197-1198, 4 L.Ed.2d 1218 (1960)" and therefore were not taxable income.
Stratton v. Commissioner, 54 T.C. at 281.
[14] We think that this approach is correct. See United States v. Scott, 660 F.2d 1145,
1164 & n. 37 (7th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445
159
(1982). Moreover, it would be unfair to Pisani not to treat the question as a factual one
when the commissioner and the tax court had, prior to the tax years in question, expressly
declared that the question was factual.
[15] Judge Edelstein, however, did not submit that issue of fact to the jury. He charged
the automatic rule that was adopted by Miriani, Jett, and O'Dwyer and was based on
Rev.Rul. 54-80. He charged the jury:
[P]olitical contributions that are diverted to personal use are not gifts. They are
includable in gross income in the year in which the funds are used personally.
In effect, therefore, he ignored Rev.Proc. 68-19 and Stratton, and he did so despite
Pisani's specific request for a charge that would have permitted the jury to determine
whether the political contributions were nontaxable gifts or taxable income. Although
Pisani's counsel took no specific *407 exceptions after the charge was given, the charge
was erroneous and the magnitude of its error was enhanced in the very next paragraph
when Judge Edelstein instructed the jury to determine whether other moneys Pisani had
received from clients were actually gifts as he claimed. The proper instruction on gifts
from clients contrasted sharply with the immediately prior instruction that political
contributions could not be gifts, and it virtually guaranteed Pisani's conviction on the tax
counts. On this record, therefore, and in light of defendant's specific request to charge,
we conclude that this erroneous instruction constituted plain error requiring reversal of all
eight of Pisani's income tax convictions.
D. Mail fraud based on Pisani's personal use of campaign funds.
Pisani challenges his campaign fund mail fraud convictions on the ground that his
conduct did not constitute the crime of mail fraud proscribed under 18 U.S.C. § 1341.
That section provides:
Whoever, having devised * * * any scheme or artifice to defraud, or for obtaining
money or property by means of false or fraudulent pretenses, representations, or
promises, * * * for the purpose of executing such scheme or artifice [uses the mails,
shall be guilty of a crime].
The "fraudulent scheme" charged against Pisani in paragraph 40 of the indictment was
one
to obtain, divert and embezzle at least $45,000 unlawfully from the Joseph R. Pisani
Campaign Funds, to convert said funds to the personal use, enjoyment and benefit of
the defendant PISANI * * *, and to conceal said diversion and embezzlement.
(emphasis added).
The italicized words above support the thrust of Pisani's argument on this issue. He
contends that his use of campaign funds for personal purposes was not unlawful and
therefore that there simply was no "fraudulent scheme" as charged in the indictment.
At the heart of this issue lies the question of whether New York law required Pisani to
use moneys contributed to his campaign fund solely for campaign purposes, and
prohibited him from putting them to personal use. The government contends that
160
applicable New York law did prohibit personal use of campaign funds, and that Pisani's
conceded use of some of them for personal purposes constituted embezzlement and
conversion. Pisani contends, and we agree, that at the time of the events in question,
nothing in New York law prohibited a candidate from using campaign funds for personal
purposes. Consequently, the "fraudulent scheme" charged in the indictment was not
established at trial, and those campaign fund mail fraud counts on which Pisani was not
acquitted must be dismissed.
1. Factual background.
Campaign funds of candidates for state offices in New York state are typically handled
through a candidate's political campaign committees which collect contributions and
disburse funds. Those committees, which often consist of no more than the candidate
and a bookkeeper, are required to file statements of their receipts and expenditures
periodically with the state board of elections. N.Y.Elect.Law § § 14-110, 14-118
(McKinney 1978 & Supp.1984).
Senator Pisani maintained several political campaign committees that collected and
disbursed funds for his candidacies for public office.
Lillian Steinberg, Pisani's
secretary, kept the books and prepared and filed with the New York State Board of
Elections the required financial disclosure statements.
These statements required
identification of the recipient, amount, and purpose of all disbursements of $50 or more,
and noted that any false statement was punishable as a misdemeanor. In preparing the
statements, Steinberg obtained the required information by reviewing the campaign
books and by asking Pisani for more information when the books did not provide an
explanation.
*408 It is undisputed that Pisani used substantial amounts from the campaign funds to
pay personal expenses of himself, of members of his family, and of his codefendant,
Kathryn Godfrey, as well as for various personal business investments. It is also
undisputed that the corresponding entries on his disclosure statements did not accurately
reflect the true purpose of those personal expenditures, and it may be, although we do not
decide the question, that a scheme to defraud his contributors could have been alleged
and proved.
As this particular case was charged by the grand jury and presented to the trial jury,
however, the essence of the alleged fraudulent scheme was that Pisani unlawfully
defrauded his own campaign funds for personal purposes. This position was set forth in
the indictment, urged in the government's opening statement and summations, and
reinforced by the charge of the trial judge who provided no separate description of the
alleged scheme to defraud but, instead, simply referred the jury back to the scheme of
embezzlement and conversion charged in the indictment.
As he presented what the case was about, in his opening statement, the prosecutor stated
that
Pisani took money from his campaign funds to pay for personal expenses * * *. Tr. 3
161
The fourth group of charges involves the campaign funds * * *. From these funds wre
[sic] taken money by Joseph Pisani, Senator Pisani, for his personal expenses, for his
personal use, not related to legitimate campaign expenses. Tr. 7
Finally, you will hear how Senator Pisani used his campaign funds like a personal bank
account. The Senator freely took money from the campaign funds to pay for his
vacation, to pay for expenseive [sic] gifts he gave to others and to pay for personal
business investments. Tr. 15
The evidence will show that Senator Pisani withdrew money from his campaign funds
for personal expenses and falsely represented those expenditures on the financial
disclosure statements. Tr. 15
You will hear many such examples of money taken out of the campaign funds, used for
personal expenses and the purpose for the disbursement falsely represented on the
disclosure statement filed with the Board of Elections. Tr. 17
In his main summation the prosecutor stated:
The government has proven that Senator Pisani engineered and carried out a scheme to
defraud his various campaign committees by filing false financial returns, false
financial disclosure statements. Tr. 2245
On his rebuttal summation the prosecutor repeated:
What the case is about, this case comes down to, is the 3 frauds, the Mallon house in
Blooming Grove, New York, and the coverup of that transaction, the fraud against the
law firm and the clients of the law firm, and the fraud against the campaign, the
campaign funds. Tr. 2396
He further stated on rebuttal:
The real point here is that Joe Pisani used thousands of dollars in his campaign funds
for personal expenses * * *. Not only that, he hid how he used that money. Tr. 2428
In at least two portions of his charge Judge Edelstein reinforced the prosecutor's view
that these mail fraud charges involved a scheme to defraud the campaign funds. When
reviewing the various counts of the indictment he stated:
Counts 11 through 26 charge that Joseph R. Pisani violated the mail fraud statute, Title
18 of United States Code, section 1341, by scheming to defraud his political campaign
funds of at least $36,000 to pay personal expenses for himself, his family and others.
Tr. 2446-7
When he discussed the elements of mail fraud, Judge Edelstein reminded the jury that it
was "not necessary that the government prove every single allegation set *409 forth in
that count of the Indictment", Tr. 2465, but that it was necessary that three elements be
proved, including the existence of a fraudulent scheme. But he made no reference to
either the proof or the government's contentions with respect to the fraudulent scheme
and thereby left the jury to decide the case based on the indictment and the arguments, all
of which focused upon the claim that Pisani had defrauded his own funds by taking from
them moneys that he was not entitled to have for personal purposes, and by concealing
what he had done by filing false disclosure statements through the mails.
162
2. The Mail Fraud statute.
[16] The two key elements of a mail fraud violation are a scheme to defraud and use of
the mails in furtherance of that scheme. Use of the mails is not in issue; we are
concerned only with the alleged fraudulent scheme. Although congress has not defined
the term "scheme to defraud", the federal courts have broadly interpreted it in
determining the reach of the mail fraud statute. United States v. Buckner, 108 F.2d 921,
926 (2d Cir.), cert. denied, 309 U.S. 669, 60 S.Ct. 613, 84 L.Ed.2d 1016 (1940). The
United States Supreme Court has held that congress may forbid any use of the mails that
furthers a scheme to defraud that it regards as contrary to public policy, even if congress
could not forbid the scheme itself. Parr v. United States, 363 U.S. 370, 389, 80 S.Ct.
1171, 1182, 4 L.Ed.2d 1277 (1960). This versatility has led to the observation that
[t]o federal prosecutors of white collar crime, the mail fraud statute is our Stradivarius,
our Colt 45, our Louisville Slugger, our Cuisinart--and our true love. We may flirt
with RICO, show off with 10b-5, and call the conspiracy law 'darling,' but we always
come home to the virtues of 18 U.S.C. § 1341, with its simplicity, adaptability, and
comfortable familiarity.
Rakoff, The Federal Mail Fraud Statute (Part 1), 18 Duq.L.Rev. 771, 771 (1980)
(footnotes omitted).
Even the best of relationships, however, must occasionally
experience some strain, and in the context of Pisani's campaign fund mail fraud counts,
we think that occasion has arrived.
3. New York law on use of campaign funds.
It seems clear that no provision of New York law in effect prior to this indictment
prohibited a candidate from using campaign funds for personal purposes. Certainly,
there was no express provision on the subject in the New York statutes, and both the
attorney general and the board of elections of the state have rendered opinions indicating
that nothing in New York's election law governs how campaign moneys that are not
disbursed for campaign purposes may be spent.
In 1983 the attorney general was asked by a city government to consider
whether a local government is authorized to enact regulations prohibiting the use or
expenditure of campaign contributions for non-campaign related purposes.
Op.Att'y Gen., No. I-83-57 (Sept. 28, 1983). He concluded that precisely because state
law does not address that issue, a locality may properly enact an ordinance prohibiting
the personal use of campaign funds. His opinion reads, in part:
[W]e have found no provision of the Election Law that deals with the disposition of
surplus campaign funds. * * * Nor have we discovered from the legislative history of
Article 14 of the Election Law or from the provisions of the Article any intent that
reporting was viewed as a means to regulate the use of campaign funds. While
disclosure may tend to inhibit the personal use of funds, such use is not prohibited and
is not subject to sanction.
Id. (emphasis added).
163
Along similar lines, the state board of elections concluded that
there is nothing in the Election Law which limits the use of surplus funds. * * *
[T]here is nothing in the Election Law which would prohibit an elected official *410
from using surplus campaign funds for any lawful purpose * * *.
New York State Board of Elections, 1979 Opinion No. 3.
The government seizes upon the term "surplus funds" in these opinions as limiting their
applicability only to those funds that are left over at the end of a campaign. We do not
think this is a fair interpretation of the principle discussed, and in any event, there was
nothing in the New York statutory system covering campaign funds to warrant drawing a
restrictive distinction between "surplus" and "active" campaign funds that would permit
personal use of the former but prohibit it as to the latter.
[17] The government also attempts to deduce a prohibition upon personal use of
campaign funds from Election Law § 17-140. Both the language and history of that
lengthy statute, which was enacted long before the modern concept of campaign
committees and campaign funds was developed, reveal that its purpose was not to limit
the uses to which contributed campaign moneys could be put, but to regulate how any
moneys, whether contributed to a candidate or drawn from his own personal resources,
could be spent in connection with election campaigns.
At the relevant times, § 17-140 read:
Any person who directly or indirectly by himself or through any other person in
connection with or in respect of any election:
1. On a day of a general, special or primary election, gives or provides, or causes to be
given or provided, or shall pay for wholly or in part, any meat, drink, tobacco,
refreshment or provision, to or for any person, other than persons who are official
representatives of the board of elections or political parties and committees and persons
who are engaged as watchers, party representatives or workers assisting the candidate;
or,
2. Pays, lends or contributes, or offers or promises to pay, lend or contribute any
money or other valuable consideration, for any other purpose than the following matters
and services at their reasonable, bona fide and customary value is guilty of a class A
misdemeanor: [There follows a list of authorized expenditures such as publicity, rent,
telephone, travel, etc.]
Nothing in this section refers to campaign committee funds or in any other way identifies
the source of the moneys from which expenditures may be made. The clear intent was to
regulate what could be spent "in respect of any election", and not to regulate or restrict a
candidate's expenditures for nonelection purposes.
Finally, the New York legislature, after argument of this appeal, enacted Chapter 152 of
the Laws of 1985 which directly addresses this issue. It added to the Election Law a new
section 14-130 which provides:
Campaign funds for personal use. Contributions received by a candidate or a political
committee may be expended for any lawful purpose.
Such funds shall not be
164
converted by any person to personal use which is unrelated to a political campaign or
the holding of a public office or party position.
[18][19] Had this new provision been in effect during the period covered by Pisani's
indictment, we would not hesitate to affirm his convictions here. But since no similar
provision had ever been enacted previously, we conclude that prior to 1985 a candidate in
New York state was not prohibited from using campaign funds for personal purposes.
That being so, the central premise underlying the fraudulent scheme charged against
Pisani fails.
As a fall-back position the government, on appeal, has shifted its emphasis. Now it
argues that even if the scheme to defraud did not involve embezzlement and conversion
of campaign funds, the evidence shows that Pisani fraudulently schemed to file false
reports of how he used his campaign funds. In essence, the government argues that
Pisani reported the information falsely, and that he did so to conceal the truth of his
personal expenditures from the board of elections and from his contributors, *411 who
would not have continued to support him had they known he was using some of their
contributions for private investments and other personal purposes.
As to a claimed scheme to defraud the state board of elections, there is no indication
before us that had the board known the truth about the nature of the expenditures it would
have been able or willing to take any corrective action. As to the claimed scheme to
defraud the contributors, there is scant evidence to establish that contributors entertained
the expectations attributed to them by the government. While one witness, Pisani's
former law partner, testified that he had contributed to Pisani's campaign funds and
expected that the money would be spent for campaign expenses, four others who testified
about how they expected their contributions to be used all agreed that they did not care
whether Pisani used them for political or personal purposes. Nor was there any evidence
that any of Pisani's political contributors ever saw or heard about the contents of the
disclosure statements he filed with the board of elections.
[20] In any event, we think this shift in theory and emphasis in the government's case
comes far too late to sustain Pisani's campaign fund mail fraud convictions. We need not
now decide whether a mail fraud charge might be based on misleading contributors
through false reports of campaign fund expenditures, because that is not the case that the
government brought against Pisani and tried to the jury. Since the government has failed
to uphold the legal premise of the fraudulent scheme on which it chose to prosecute
Pisani, namely, that personal use of campaign funds was prohibited under New York law,
the campaign fund mail fraud convictions must be dismissed.
CONCLUSION
The convictions on the campaign fund mail fraud counts are reversed, and those counts
of the indictment are dismissed. The convictions on the income tax counts are reversed,
and those counts are remanded for a new trial. The conviction on the law practice mail
fraud count is affirmed.
165
United States Court of Appeals,
Second Circuit.
UNITED STATES of America, Appellee,
v.
Mario BEJASA, Jr., Defendant-Appellant.
No. 1221, Docket 90-1014.
Argued May 11, 1990.
Decided May 23, 1990.
Defendant was convicted in the United States District Court, Southern District of New
York, Charles M. Metzner, J., of conspiring to defraud United States and Immigration
and Naturalization Service (INS), knowingly preparing and filing false forms with INS,
and knowingly obstructing INS proceedings. Defendant appealed. The Court of
Appeals, Milton Pollack, Senior District Judge, sitting by designation, held that: (1)
Government did not improperly deny defendant access to government witnesses; (2)
defendant was not prejudiced by inadvertent delay in disclosure of exculpatory
impeachment evidence; and (3) defendant was not prejudiced by district court's conduct.
Affirmed.
Before ALTIMARI and MAHONEY, Circuit Judges, and POLLACK, Senior District
Judge. [FN*]
FN* Honorable Milton Pollack, Senior United States District Judge for the
Southern District of New York, sitting by designation.
MILTON POLLACK, Senior District Judge.
Defendant-appellant Mario Bejasa, Jr., appeals from a judgment of conviction entered in
the Southern District of New York (Metzner, J.) on December 18, 1989. Bejasa was
convicted by a jury following a four-day trial on five counts of conspiring to defraud the
United States and the United States Department of Justice, Immigration and
Naturalization Service ("INS"), to file false statements with the INS, and to obstruct INS
proceedings, in violation of 18 U.S.C. § 371; of knowingly preparing and filing false
forms with the INS, in violation of 18 U.S.C. § § 2, 1001; and of knowingly obstructing
INS proceedings, in violation of 18 U.S.C. § § 2, 1505. Subsequent to the conviction,
the Court suspended imposition of sentence on all five counts and placed Bejasa on
concurrent three-year terms of probation, with the special condition that he perform 100
166
hours of community service. In addition, the Court assessed a $10,000 fine. Bejasa is
currently serving his term of probation.
Bejasa contends on appeal that he did not receive a fair trial on the grounds that the
Government blocked access to witnesses and failed to produce certain exculpatory
impeachment material and on the ground that the trial judge allegedly improperly swayed
the jury against defendant by his so-called sua sponte interruptions.
Background
Bejasa is a Filipino lawyer who came to New York in 1980 and who, according to his
testimony, was admitted to practice law in New York in February 1983. In April 1983,
Bejasa was hired by Godwin Valdez for his law office, where Bejasa was subsequently
paid $200-$300 per week.
Valdez was arrested in 1988 for entering the United States with a fraudulent American
passport. As part of his subsequent cooperation with the Government, Valdez implicated
Bejasa, Arnold Clemente (as a co-conspirator) and others in a scheme to defraud the
United States and the INS by obtaining "sham" divorces and marriages for Filipinos in
the United States who sought permanent resident alien status (a "green card").
Indictment S 88 Cr. 967 was filed on August 31, 1989, charging Bejasa with five counts,
including conspiracy to defraud the United States and INS, knowingly preparing false
INS forms, and knowingly obstructing INS proceedings. [FN1]
FN1. That indictment superseded Indictment 88 Cr. 967, which was filed on
December 21, 1988.
Arnold Clemente pleaded guilty to Count One of
Indictment 88 Cr. 967 on April 18, 1989, before the Honorable Pierre N. Leval,
United States District Judge.
On August 1, 1989, Judge Leval suspended
execution of the one-year sentence he had imposed on Clemente and placed
Clemente on probation for four years, with the special condition that he perform
400 hours of community service. Judge Leval also imposed a $500 fine. After
signing the cooperation agreement with the Government, Godwin Valdez pleaded
guilty to Count One of Indictment 88 Cr. 967 on January 6, 1989, before Judge
Leval. On December 1, 1989, Judge Leval suspended the sentence he had
imposed and placed Valdez on probation for two years.
At trial, the Government presented evidence regarding two main transactions:
In November 1983, Anthony Paredes entered the United States on a one-month visitor's
visa with his wife. He subsequently contacted Clemente about changing his immigration
status. Clemente informed Paredes about a sham divorce/marriage procedure and for
$5,000 agreed to arrange a new marriage to a pliant American *139 citizen. He then
accompanied Paredes to Valdez' law firm where Paredes met with Valdez. Valdez
testified that during this meeting he called Bejasa in, told him about the scheme and told
167
him that he wanted Bejasa to handle the legal work for Paredes. Valdez subsequently
prepared the papers for a divorce of Paredes from his wife, Lourdes Paredes, with
falsified addresses and grounds for divorce. On March 19, 1984, Bejasa prepared and
notarized a supplemental affidavit for the divorce action which contained false
statements. After Paredes was married to his American "wife," Christina Chaj, the
evidence indicates that he continued to live with his ex-wife Lourdes Paredes; yet Bejasa
signed immigration forms which contained false information about Paredes' status. On
June 4, 1984, according to Paredes' testimony, Bejasa coached Paredes and Chaj on false
answers for an INS interview.
In April 1984, Daniel Dayao entered the United States on a six-month tourist visa with
his wife. Dayao learned from Paredes of the divorce scheme, and, through Paredes, met
Clemente, who said that for $5,000 he would find Dayao an American wife and a law
firm to handle the legal work. In May or June 1984, according to the testimony adduced
at trial, Dayao told Bejasa he wanted a divorce to obtain a green card but that he would
continue to live with his Filipino wife. According to the testimony, Bejasa agreed to and
did prepare his divorce papers, which contained false information. Dayao subsequently
married Linda Shugart. On November 15, 1984, Bejasa presented to Dayao immigration
papers which had false information for his signature. Dayao, however, never went
through with his INS interview and was never granted resident alien status.
Neither Paredes nor Dayao ever left his former wife. After the INS charade, Paredes
divorced his American "wife" and resumed his interrupted marriage with his former wife,
and Dayao, at the time of trial, was engaged in the process of reversing his status
similarly.
Discussion
In asserting on this appeal that he was not accorded a fair trial, Bejasa makes three
primary contentions: (1) that the Government denied him access to the main Government
witnesses in the case; (2) that the Government failed to produce certain exculpatory
impeachment material for Bejasa's use at trial; and (3) that the trial judge improperly
swayed the jury against Bejasa by his comments and questioning during the trial. We
will address each contention in turn.
I. Access to Government Witnesses
[1] Prior to trial, Bejasa through his counsel, Jonathan Avirom, sought to interview
Paredes and Dayao, two of the Government's primary witnesses against Bejasa. The
Government's representatives refused to provide the defense with their phone numbers or
addresses. Though Bejasa never sought a court order to mandate production of this
information, at the last pretrial conference, one month before the trial, the Government
agreed to ask the two witnesses if they wished to speak to defense counsel. The
Government's representative stated on the record that he contacted the witnesses "more
than once." However, Paredes and Dayao chose not to be interviewed by the defense.
168
Bejasa argues that because of the vital nature of Paredes and Dayao's testimony he could
not properly prepare his defense, including the cross- examinations of those witnesses,
without being able to interview them.
Although the Government has no "special right or privilege to control access to trial
witnesses," United States v. Hyatt, 565 F.2d 229, 232 (2d Cir.1977), the Government did
not improperly interfere with access here. Fed.R.Crim.P. 16 does not require the
Government to furnish the names and addresses of its witnesses in general. It is true that
the "district courts have authority to compel pretrial disclosure of the identity of
government witnesses ..." United States v. Cannone, 528 F.2d 296, 300 (2d Cir.1975)
(emphasis added). However, in the absence of "a specific showing *140 that disclosure
was both material to the preparation of [the] defense and reasonable in light of the
circumstances surrounding [the] case," id. at 301 (emphasis in original), the district court
could not be said to have abused its discretion in not compelling such disclosure.
This, however, is not a case in which the Government was withholding the identities of
or access to witnesses whose presence at trial would surprise the defendant. Here,
Bejasa knew who the witnesses would be, had dealt with them before, and, presumably,
either already knew their addresses and phone numbers from his representation of them
or could otherwise have contacted them had he attempted with due diligence to do so.
Morever, no "specific showing" of any sort has been made here that disclosure of more
than the identities of the witnesses was material to the preparation of the defense; nor did
Bejasa ever even seek an order from the Court to compel such disclosure. Rather he
agreed to have the Government contact Paredes and Dayao for him, which it apparently
did. Finally, it should be noted that Bejasa's cross-examinations of Paredes and Dayao at
the trial were both vigorous and extensive.
II. Disclosure of Impeachment Material
[2] At the inception of trial, Bejasa's counsel noted on the record that Bejasa had not
received the file that the INS created on Valdez when he came to Miami using a phony
United States passport, a crime to which he has pled guilty and for which he has been
sentenced. The defense felt that this file contained information which would impeach
the Government's primary witness, Valdez, and was therefore exculpatory.
The
Government initially indicated that no such file existed with INS in Florida because the
case had been handled by the United States Customs Service ("Customs"). The next
day, the Court ordered the Government to produce the file whether Customs or INS had
it, but cautioned, "I think there are going to be limits to it. I can't tell you until I have the
file and go over it." That afternoon the Government informed the Court that the file,
which was in the possession of the INS, was being air delivered from Florida, but handed
over Valdez' sworn post-arrest statement which had previously arrived from the Miami
file. The rest of the file did not arrive until after Valdez had testified. At that time, the
Court, having itself examined the file, denied Bejasa's request to put Valdez back on the
stand for further cross-examination, finding that the information in the file did not add
materially to the previous cross-examination.
169
The Government admits that this file contained exculpatory impeachment evidence
which should have been produced pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972). However, failure to produce Brady material, when inadvertent as
here, does not automatically require reversal. To reverse, the evidence must be "material
in the sense that its suppression undermines confidence in the outcome of the trial,"
United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481
(1985), i.e., it is material "only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different."
Id. at 682, 105 S.Ct. at 3383.
The Government contends, correctly, that there is no reasonable probability that this
evidence would have changed the result, because Bejasa had already cross-examined
Valdez extensively on the areas contained in the file, namely: his cooperation with the
Government; his 1989 conviction for entering the United States using a false United
States passport; his 1984 entry using a false Philippine passport, for which he was never
arrested; the fraudulent marriages he helped arrange; and his attempt to defraud an
insurance company by falsely claiming to have lost some $2,000 in traveller's checks.
While the Government unquestionably should have produced the evidence in the Miami
file prior to Valdez' testimony, as found by the trial judge, it would have had little or no
influence on the result.
Therefore, it is not material evidence under the standard
announced in *141 Bagley, and the Government's inadvertent failure to produce it before
Valdez' testimony does not constitute a basis for reversing Bejasa's conviction.
III. Trial Judge's Conduct:
[3] "Rarely is there a case reaching us after conviction in which the defendant believes
he has received a fair trial. The human tendency to blame a trial judge for the jury's
verdict of guilt is a frailty we often encounter, and almost as frequently we find such
claims to be without merit or substance. Once again we are asked by a convicted
defendant to consider a claim of improper conduct on the part of a trial judge." United
States v. Nazzaro, 472 F.2d 302, 303 (2d Cir.1973) (reversing conviction of defendant).
Defendant-appellant cites several examples in which Judge Metzner interrupted
testimony of Valdez, Paredes and Dayao either to prevent a question which had not been
objected to by the Government or to interpret an answer on behalf of a witness. Bejasa
contends that, in a case which allegedly hinged almost solely on Bejasa's credibility as
opposed to that of Valdez, Paredes and Dayao, the Court manifested its endorsement of
the prosecution's case and improperly swayed the jury against Bejasa. The defendant has
far from met the substantial burden of showing reversible error.
Both the Federal Rules of Evidence and the relevant case law make clear that the trial
judge may actively participate in a jury trial. He "need not sit like a 'bump on a log'
throughout the trial." United States v. Pisani, 773 F.2d 397, 403 (2d Cir.1985), reh'g
denied, 787 F.2d 71 (1986). Moreover, the district court has "broad discretion over the
scope of cross-examination, and we will not overturn an exercise of that discretion absent
170
a clear showing of abuse."United States v. Bari, 750 F.2d 1169, 1178 (2d Cir.1984)
(citations omitted), cert. denied, 472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985).
This Court will reverse when "it appears clear to the jury that the court believes the
accused is guilty." Nazzaro, 472 F.2d at 303. The vital question is not whether the trial
judge's conduct left something to be desired but "whether his behavior was so prejudicial
that it denied ... appellant[ ] a fair, as distinguished from a perfect, trial." United States
v. Robinson, 635 F.2d 981, 984 (2d Cir.1980), cert. denied, 451 U.S. 992, 101 S.Ct.
2333, 68 L.Ed.2d 852 (1981). In making this determination, we "can only be guided by
the cold black and white of the printed record." United States v. Mazzilli, 848 F.2d 384,
389 (2d Cir.1988).
Judges, being human, are not immune to feelings of frustration at the occasional antics or
inartfulness of attorneys or impatience at the evasiveness of witnesses. Such feelings
may give vent to remarks which, judged in isolation from the totality of the record
through the dispassionate looking glass of hindsight, "would better have been left
unsaid." Robinson, 635 F.2d at 985. Yet, analysis of such comments, taken out of
context of the entire record, is not the proper basis for review. Rather, we must make
"an examination of the entire record," Mazzilli, 848 F.2d at 389, in order to determine
whether the defendant received a fair trial.
[4] Having carefully scrutinized the entire trial record here, we are convinced beyond
peradventure of doubt that Judge Metzner's conduct was not prejudicial to defendant and
that Bejasa's trial was fair. Judge Metzner's inquiries and interpolations complained of
assisted in clarification of ambiguities for the benefit of the jury. Cf. United States v.
Gurary, 860 F.2d 521, 527 (2d Cir.1988), cert. denied, 490 U.S. 1035, 109 S.Ct. 1931,
104 L.Ed.2d 403 (1989). Moreover, any possible prejudicial effect was cured by Judge
Metzner's cautionary instruction. [FN2]
FN2. Judge Metzner charged:
I have sought to avoid any comments which might suggest that I have personal
views on the evidence or that I have any opinion as to the guilt or innocence of
this defendant. You are not to assume that I have any such feelings or opinions.
This charge is given to you solely to instruct you as to the applicable law in this
case.
The actions of the judge during the trial in granting or denying motions or ruling
on objections by counsel or in statements to counsel or in attempting to clearly set
forth the law in these instructions are not to be taken by you as any indication of
any determination of the issues of fact. These matters, the actions of the court,
relate to procedure and law. You, the members of the jury, determine the facts.
Tr. 494.
171
*142 In sum, none of the defendant-appellant's contentions regarding an unfair trial have
merit. Accordingly, we affirm the judgment of conviction entered against Bejasa.
Affirmed.
904 F.2d 137
172
United States Court of Appeals,
Second Circuit.
UNITED STATES of America, Appellee,
v.
Paul MAZZILLI, Defendant-Appellant.
No. 744, Docket 87-1438.
Argued Feb. 2, 1988.
Decided June 6, 1988.
Defendant was convicted of receiving stolen property by jury before the United States
District Court for the Eastern District of New York, and defendant appealed. The Court
of Appeals, Altimari, Circuit Judge, held that: (1) District Court's repeated and vigorous
questioning of defendant resulted in denial of fair trial, and (2) District Court's query of
defendant to characterize federal agent's contrary testimony was improper.
Before LUMBARD, WINTER and ALTIMARI, Circuit Judges.
ALTIMARI, Circuit Judge:
Defendant-appellant Paul Mazzilli appeals from a judgment of conviction entered in the
United States District Court for the Eastern District of New York. After a three day jury
trial, Mazzilli was convicted of receiving stolen property in violation of 18 U.S.C. §
2315, possession of stolen property in violation of 18 U.S.C. § 659, and conspiracy to
possess and distribute stolen property in violation of 18 U.S.C. § 371. Thereafter, he
was sentenced to concurrent five-year terms of imprisonment *385 on each count, of
which four and one-half years were suspended, concurrent five-year terms of probation
and was ordered to pay an aggregate $25,000 fine, a special assessment of $50.00 on each
count, and to make restitution. Execution of the sentence was stayed pending appeal.
[1] On appeal, Mazzilli presents several arguments in support of his contention that he
was denied a fair trial. In particular, Mazzilli claims that the district court's intensive
questioning while he testified caused the jury to conclude that the court disbelieved his
account of the facts and swayed the jury's views during its deliberations. [FN1] In
addition, Mazzilli points out that the court inquired into prejudicial, collateral matters
during its questioning of him and he argues that, because the government's attorney
would have been prohibited from inquiring into these matters, the district court erred in
doing so. Because we conclude that the district court's intensive questioning of Mazzilli
denied him a fair trial, we reverse.
FN1. We observe that defendant did not raise an objection at trial to the questions
173
posed by the district court, and apparently sought no curative instructions. We
also note that the government does not argue here that Mazzilli's challenge was
not properly preserved for appeal. Because the government has failed to raise this
issue on appeal and because we conclude that the district court's conduct was such
that it prejudiced Mazzilli's fair trial rights, we conclude that it is appropriate to
address the merits of this claim.
BACKGROUND
The instant case arose out of the theft of a shipment of various electronic products and
electronic children's games. On November 7, 1986, two tractor- trailers containing 500
Soundesign television sets, 3,408 Soundesign telephones and 1,428 Entertech Photon
Warrior games were stolen from a truck yard located in New Brunswick, New Jersey.
Shortly thereafter, the stolen merchandise surfaced in Brooklyn, New York.
On
November 19, 1986, FBI agents who were investigating the theft seized 284 of the stolen
televisions and 411 of the stolen games from the home of defendant-appellant Paul
Mazzilli. On the same day, government agents also seized 3,188 of the stolen telephones
from Albert Baker, who owned a Brooklyn, New York wholesale video equipment outlet.
On November 24, 1986, Mazzilli was arrested and charged with possession of the stolen
merchandise.
At trial, Baker, who cooperated with the government in Mazzilli's prosecution, testified
that on November 12, 1986 he was approached by an acquaintance named Joey who
offered to sell him Photon Warrior games. The games normally sell for between $59 and
$69 per game, but Joey offered them to Baker for between $35 and $45 each. Joey
accounted for the low price by explaining that, although the games had been ordered for a
North Carolina store, they were part of an "overage of a shipment" and had been
"refused." Baker bought 800 games for a total cost of $30,000. Baker explained,
however, that Joey wanted to be paid in cash and would not provide him with an invoice
or bill of lading for the goods. Although Baker initially did not suspect that the
merchandise he purchased from Joey was stolen, the cash terms and the lack of invoices
led him to believe that the games were stolen.
Subsequently, on November 18, having sold the first shipment of games, Baker sought to
buy more, but Joey did not have any to sell. Joey then asked Baker to "store" some
Soundesign telephones for ten days as a "favor," and stated that "[i]f you can't sell them,
I'll take them back from you and I'll give you a dollar to store and to handle each one."
The next day two FBI agents visited Baker's store and seized the telephones. The agents
then asked Baker whether he had information regarding Soundesign television sets.
Baker told the agents that "they [the television sets] were on the streets and ... [that] there
[was] other stuff on the streets." He explained that he believed that this merchandise was
stolen. He also told the agents that Mazzilli had offered to sell him some television sets
but that he was not interested.
*386 In addition to Baker's testimony, the government's case against Mazzilli included
174
the testimony of the two FBI agents, Andy Conlin and Colleen Nichols, who had seized
the Soundesign television sets from Mazzilli's home. Agent Nichols explained that after
she and Agent Conlin had identified themselves and had explained to Mazzilli that they
were looking for merchandise that had been stolen, Mazzilli directed them to his
basement where he had stored the television sets. Agent Nichols testified that Mazzilli
then approached her and sought to make a "deal" with the agents.
To rebut the government's case, Mazzilli testified on his own behalf. Mazzilli described
himself as an inexperienced businessman who ran a small videocassette rental store in
Brooklyn, New York. He stated that he was on a first-name basis with most of his
customers, who largely were from the same neighborhood. Mazzilli explained that Joey,
with whom he was acquainted, offered to sell him some Soundesign television sets,
providing that he could return any unsold televisions in 30 days time and pay for only
those sets which he had actually sold. He purchased 325 Soundesign television sets from
Joey at $62 each and he resold them for $129, almost invariably for cash and without
issuing a receipt. To counter the inference that, when he received the discounted
merchandise, he should have known it was stolen, Mazzilli explained that, due to his
inexperience, he simply thought he was getting a good deal on "overage" merchandise,
which is commonly sold at deep discount throughout New York City. Mazzilli also
challenged Agent Nichols' account of the conversation in which he allegedly sought a
deal.
During the course of Mazzilli's testimony, the district court interrupted on several
occasions to ask questions.
At one point during cross-examination, while the
government's attorney was attempting to impeach Mazzilli's testimony regarding his lack
of knowledge that the goods were stolen, the district court intervened to ask questions
regarding his transaction with Joey:
The Court: Let me see if I understand, on these terms. They were net 30 or open. So
that you either paid him within 30 days or you could return the unsold balance and just
pay for what you sold?
[MAZZILLI]: Right.
THE COURT: All of these items?
[MAZZILLI]: Yes.
THE COURT: And there-he didn't require you to put any money down?
[MAZZILLI]: No.
THE COURT: Nothing?
[MAZZILLI]: No.
THE COURT: He just brought them and put them in your cellar?
[MAZZILLI]: Yes.
THE COURT: Is that the way the invoice reads from Global?
[MAZZILLI]: I don't remember. Probably says net on it. Probably net 30.
THE COURT: Didn't say anything open?
[MAZZILLI]: I don't know. I'm pretty sure it said net 30.
THE COURT: It didn't say anything about open and right to return?
[MAZZILLI]: No. That's normal.
THE COURT: That's normal? That's the way all your customers do it?
175
[MAZZILLI]: All my distributors, sure. If I take a large delivery and I can't sell them,
I can return them. Otherwise I won't take-THE COURT: It doesn't say anything on the Global, though?
[MAZZILLI]: Doesn't say it's net 30?
THE COURT: Doesn't say anything about right to return.
[MAZZILLI]: That's normal. Normal on net 30, as long as I have been in business. I
have always been able to return what was unsold.
After this exchange, the government's attorney proceeded with his cross- examination,
asking a few more questions, when the district court again invervened:
The Court: You have a record of these sales that you made of 41 TVs and 39 toys?
[MAZZILLI]: The fact that they were sold, yes.
*387 The Court: No. You have a record of the individual sales that you made?
[MAZZILLI]: Sure.
THE COURT: His question is, did you search for the records of those sales?
[MAZZILLI]: No. Have I searched for them, no.
THE COURT: No.
[AUSA]: So you haven't gone through Precision Video's records to look for records
about any sales you made of these TVs or toys, is that right?
[MAZZILLI]: Just the one with the Master Charge.
THE COURT: Is that Global invoice read to--it is addressed to you? Paul Precision?
[MAZZILLI]: I don't remember. I don't have it here.
***
THE COURT: Did they call you up and ask you to return this merchandise after the 30
days were up?
[MAZZILLI]: Someone did contact me in reference to the thing after I was arrested.
THE COURT: They did?
[MAZZILLI]: Yes.
THE COURT: You got his name?
[MAZZILLI]: Yes. His name is Joe.
THE COURT: Joe?
[MAZZILLI]: Joe.
THE COURT: The same Joey?
[MAZZILLI]: At this time the same Joey. But I told him I couldn't say anything about
it because of my attorney's request.
THE COURT: You didn't say to Joey, listen, those are hot goods?
[MAZZILLI]: Joey never said that.
THE COURT: You didn't say that to Joey?
[MAZZILLI]: No.
THE COURT: You didn't?
[MAZZILLI]: My attorney advised me not to talk about the case.
THE COURT: Wait a minute. This guy had just sold you and got you in all this
trouble for some $30,000 worth of hot goods and you never said, hey listen, that stuff
you sold--you sold to me was hot?
[MAZZILLI]: I never said that to him.
176
THE COURT: He called you up?
[MAZZILLI]: Yes.
THE COURT: Did you ask him where he was?
[MAZZILLI]: No.
THE COURT: You didn't ask him for his last name either at that point?
[MAZZILLI]: No.
THE COURT: Or his address?
[MAZZILLI]: No.
On other occasions, the district court questioned Mazzilli on the fact that he had sold all
the television sets for cash and about various inadequacies in the invoices he received for
the merchandise.
In addition, the district court returned to the point made earlier
regarding the fact that Mazzilli did not immediately contact Joey after the FBI agents
seized the television sets:
The Court: When you found out from the agent these were stolen and eight days later I
think you told us you found this invoice, did you attempt to locate the location of where
Global was?
[MAZZILLI]: No, I didn't. I called my attorney.
THE COURT: You never looked up in a phone book or anything like that?
[MAZZILLI]: No.
THE COURT: No. When Joey called you, you didn't say where is Global located?
[MAZZILLI]: No.
THE COURT: Okay.
The court in its questioning returned to Mazzilli's failure to contact Joey during three
other exchanges, each subsequent colloquy essentially repeating the same line of inquiry.
The court did not limit its intervention to crossexamination. While Mazzilli testified on
direct examination and after he disputed Agent Nichols' account of the circumstances
surrounding his alleged offer to make a deal, the district court interrupted:
The Court: Wait a minute. You heard--you saw the demonstration that was put on
here when Ms. Nichols described what happened where she was *388 standing right
alongside of him. As you recollect it, as I understand it, he was-[MAZZILLI]: He was not next to her.
THE COURT: She made that up?
[MAZZILLI]: That is correct.
THE COURT: All right.
[MAZZILLI]: Or she was mistaken.
THE COURT: Just mistaken?
[MAZZILLI]: One or the other.
DISCUSSION
[2] Mazzilli contends on this appeal that the district court's conduct denied him a fair
trial. He asserts that because the sole issue at trial was whether he knew that the
merchandise he possessed was stolen, the jury's evaluation of his credibility was critical
to his defense that he lacked such knowledge. He argues that the court's intensive
177
questioning while he testified communicated to the jury its impression that his testimony
was unworthy of belief. In addition, Mazzilli argues that the district court's instruction-telling the jury not to be swayed by the court's questions--did not mitigate the adverse
impact of its active intervention. We agree.
[3] A district court's role at the trial "is not restricted to that of a mere umpire or referee,"
United States v. DiTommaso, 817 F.2d 201, 221 (2d Cir.1987); "a trial judge need not sit
like 'a bump on a log' throughout the trial." United States v. Pisani, 773 F.2d 397, 403
(2d Cir.1985). In recognition of the fact that the district court bears the responsibility for
insuring that the facts in each case are presented to the jury in a clear and straightforward
manner, we have consistently held that " 'the questioning of witnesses by a trial judge, if
for a proper purpose such as clarifying ambiguities, correcting misstatements, or
obtaining information needed to make rulings, is well within' the court's 'active
responsibility to insure that issues clearly are presented to the jury.' " United States v.
Victoria, 837 F.2d 50, 54 (2d Cir.1988) (quoting Pisani, 773 F.2d at 403); see United
States v. Nazzaro, 472 F.2d 302, 313 (2d Cir.1973).
[4][5] Fundamental to the right to a fair trial, however, is that the court's responsibility to
assist the jury in understanding the evidence should not be so zealously pursued as to
give the impression to the jury that the judge believes one version of the evidence and
disbelieves or doubts another. See Victoria, 837 F.2d at 55, Nazzaro, 472 F.2d at 303.
While it is unquestionably proper for the government to seek to impeach a defendant's
testimony, this is not a proper function of the court for it must at all times maintain the
appearance of impartiality and detachment. See Nazzaro, 472 F.2d at 313.
In the instant case, Mazzilli relied almost exclusively on his own testimony at trial to
rebut the government's case. The jury's evaluation of Mazzilli's credibility therefore was
critical to its determination of his guilt or innocence. Indeed, because the government
lacked direct evidence to tie Mazzilli to the thefts, and because Mazzilli had an
explanation for nearly every piece of circumstantial evidence offered against him, the
government necessarily had to discredit Mazzilli's testimony through impeachment.
Where, as here, the defendant's credibility is crucial to his defense, a jury's impression
that the court disbelieves his testimony surely affects its deliberations. The jury cannot
be regarded as having freely come to its own conclusions about the defendant's credibility
when the court has already indicated, directly or indirectly, that it disbelieves his
testimony.
The record demonstrates that the district court played an overly intrusive role during
Mazzilli's testimony. Through its questions, the district court imparted a message of
skepticism to the jury and seemingly invited the jury to infer that Mazzilli possessed
knowledge that the merchandise was stolen. It was up to the government to establish
Mazzilli's knowledge beyond a reasonable doubt and not to be assisted by the court's
questioning. The court's questioning left the jury with the indelible impression that the
court did not believe Mazzilli's account of the facts. This was error.
[6] As a separate matter, we observe that the district court asked Mazzilli to *389
178
characterize Agent Nichols' testimony. We have held that it is improper for a court to
require a witness to characterize the testimony of a government agent as a lie. See
Victoria, 837 F.2d at 55; cf. United States v. Richter, 826 F.2d 206, 208 (2d Cir.1987).
Although this alone would not necessarily merit reversal, because the determination of
whether to believe the agent's testimony or Mazzilli's is left to the jury alone, we find that
the court's questions in this regard were also improper. See Victoria, 837 F.2d at 55.
We note that the district court instructed the jury not to infer anything from its questions
posed to Mazzilli. We nevertheless conclude that on this record the court's instruction
could not have adequately mitigated the harm caused by its vigorous and extensive
questioning.
CONCLUSION
It is always difficult to evaluate a claim that specific conduct of the district court denied
a defendant of a fair trial. In these cases, our review can only be guided by the cold
black and white of the printed record. From the record, it is difficult to gleen tone of
voice, whether sarcastic or neutral, facial expression, whether reflecting disbelief or sober
thoughtfulness, or physical demeanor, whether self-contained or expressing opinion and
emotion. Therefore, it is only after an examination of the entire record that we can come
to a conclusion about the conduct of the district court.
Having conducted such a review, we conclude that the district court exceeded its proper
bounds by assuming the role of advocate to undermine Mazzilli's credibility. We find,
therefore, that the court's prejudicial questioning and its compelling Mazzilli to
characterize the agent's testimony resulted in denying him a fair trial. Accordingly, we
reverse the judgment of conviction entered against Mazzilli and remand for a new trial.
848 F.2d 384, 25 Fed. R. Evid. Serv. 1328
179
United States Court of Appeals,
Second Circuit.
George G. SANTA MARIA, Plaintiff-Appellant,
v.
METRO-NORTH COMMUTER RAILROAD, Defendant-Appellee.
No. 296, Docket 95-7230.
Argued Oct. 27, 1995.
Decided March 18, 1996.
Injured railroad employee brought action against railroad under Federal Employers'
Liability Act (FELA). The United States District Court for the Southern District of New
York, Kevin Thomas Duffy, J., entered judgment upon jury verdict in favor of railroad.
Employee appealed. The Court of Appeals, Oakes, Senior Circuit Judge, held that: (1)
doctrine of res ipsa loquitur was inapplicable, and (2) district judge's treatment of
employee's trial counsel and abrupt removal of such counsel midway through trial
necessitated new trial.
Vacated and remanded.
Before FEINBERG, OAKES and CABRANES, Circuit Judges.
OAKES, Senior Circuit Judge:
George G. Santa Maria ("Santa Maria") appeals from the judgment of the United States
District Court for the Southern District of New York, Kevin T. Duffy, Judge, entered
after a jury verdict for the defendant Metro-North Commuter Railroad ("Metro-North")
on Santa Maria's Federal Employers' Liability Act claim, 45 U.S.C. § 51 et seq. (1994)
("FELA"). Santa Maria appeals the judgment on several grounds, arguing that the
district court (1) failed to charge res ipsa loquitur; (2) made erroneous evidentiary
rulings; (3) erroneously allowed interrogation by Metro-North's counsel regarding Santa
Maria's receipt of benefits under the Railroad Retirement Act; and, most importantly, (4)
abused its discretion in denying a mistrial after demonstrating antipathy towards Santa
Maria's case and chastising, holding in contempt, and summarily removing his trial
counsel, Joseph Smukler ("Smukler"), as counsel after four days of trial with only two
and one-half days for replacement counsel to prepare. We believe that the trial judge's
attitude, his treatment of Smukler, and the abrupt change of counsel midway through trial
sufficiently prejudiced the plaintiff so as *267 to require a new trial. Accordingly, we
vacate and remand.
BACKGROUND
Santa Maria worked as a trainman and conductor for Metro-North at the time of his
180
alleged accident. He claims that on December 19, 1990, he was alone in a cubicle in
Grand Central Station, napping on a cot supplied by Metro-North for conductors, when
the cot suddenly collapsed. Santa Maria sued Metro-North under FELA, 45 U.S.C. § §
51 et seq. (1994), for neck and back injuries sustained during the collapse and for
depression caused by his disability.
Santa Maria was not unfamiliar with personal injury suits: he had previously sued
Metro-North four times for accidents on the job. In each case, as in the present action,
he hired the same lawyer, Joseph Smukler of Philadelphia. The case went to trial before
a jury on January 23, 1995.
Because this appeal concerns the fairness of the jury trial, we must examine the trial
proceedings, which involved fairly complex medical disagreements among a battery of
experts over the plaintiff's neck injuries, in some detail. Santa Maria claims that the court
continually badgered Smukler and cast doubt on the veracity of Santa Maria's case by its
treatment of witnesses, including the plaintiff. Given these claims and our decision to
remand for a new trial, we focus our attention primarily on the actions of the court during
the trial proceedings.
The first indication of a potential problem between the court and Smukler came during
the direct examination of the plaintiff's first witness, a medical expert. The witness
testified that "I had him see a colleague also for a second neurological opinion as to
surgery, and he concurred that he felt this was--" whereupon there was a sustained
objection. The witness apologized, but Smukler went on to ask, "You said you sent him
to someone else who concurred--." The court sustained an objection, adding, "Now,
look, counsel, you know that's improper. Next question. Ladies and gentlemen,
withdraw what the lawyer just said. Next question."
During the recess with the jury not present, the court gave Smukler a warning in the
following language:
THE COURT: Counsel, I have to tell you something. You pull what you pulled
before where there was an objection taken that's to purely objectionable material and
you repeat it as if it were a fact, I will declare a mistrial and I will charge you for the
costs of impanelling the jury and recommend that you not be permitted to practice in
this district again. Got the picture?
SMUKLER: I have the picture, your Honor.
THE COURT: Good.
There were no further problems before the jury that day until Smukler took exhibits
consisting of x-ray enlargements and attempted to use them through the next witness, a
neuroradiologist. Metro-North's counsel objected and the court admonished, "Counselor,
look, let me make this very clear. Exhibits are supposed to be shown to the other side
before you get to court, not saying, oh, I've got blowups, I've got this. The exhibit. Do
you understand?" Smukler replied, "Sure, all right."
On redirect, Smukler inquired, "Has any question or any information given to you
181
changed your opinion that this man has a herniated disc at C4-5 and C5-6?" and received
a negative answer. He continued, "It still remains your opinion based on--." The court
interrupted, "That's what he said. There goes your summation. Step down, Doctor."
After the jury was excused, the court said to Smukler, "I understand this is an experiment
that counsel sums up in the middle of a trial. I'm going to let you do it and you will get
no summation at the end of it. Do it again, and you'll have none."
Plaintiff's third witness was a certified neurosurgeon who, when asked by counsel which
hospitals he worked in, answered, "I went to several hospitals. I am working now out of
an outpatient." The court said, "I'm sorry, is that the name of a hospital, outpatient?"
The witness said, "No, no, no. I used to work in many hospitals. I am working out of
an outpatient now for the last few years." The court: "So you're not working *268 in
any hospital?" The witness: "No." The court: "Okay."
At the end of the examination of the third witness, the following exchange occurred in
the presence of the jury:
COURT: Tell me, Doctor, you came way up from Philadelphia today. You didn't
come dressed that way?
DOCTOR: No, I came from Northfield.
COURT: But you didn't wear the white smock?
DOCTOR: I was seeing a patient in Northfield.
COURT: You didn't answer my question.
DOCTOR: I'm sorry?
COURT: Did you wear the white smock up here?
DOCTOR: No. I was wearing the coat and I was carrying the white coat.
COURT: All right, thank you.
The third day of trial began with Smukler calling fellow employees of the plaintiff, who
described the cots in the sleeping cubicles at Grand Central. Smukler said to a witness, "I
want to show you what I have marked as Plaintiff Exhibits No. 11, 12 and 13 which the
defendant has supplied us with, the exact cot involved in the accident. And I want you to
look at that, please." Metro-North's counsel objected and the court said (apparently to
Smukler), "If you want to testify I will swear you and I will disqualify you to be the
lawyer because you cannot testify and be the lawyer in the same case. The way to show
an exhibit to the witness is: I show you exhibit so-and-so. Can you tell me what it is?
Period."
Later that same day, Santa Maria testified to his treatment and care by various doctors.
After Santa Maria's testimony that he had seen Metro-North doctors every month from
February 1991 to 1993, Smukler started to repeat the answer, "So from February of '91 to
the summer of '93--." The court interrupted to say, "That's what he said. Next question."
Smukler: "Okay, all I wanted to--." The Court: "Remember what I told you yesterday
about summations?" Smukler: "No, I wanted to ask him the name of the doctor that he
saw." The Court: "Yes, that's fine, that's a question." Smukler: "Judge,--." The Court:
"What you're doing--ladies and gentlemen, time for a break. Take 10 minutes."
182
When the jury had left the courtroom, the following exchange occurred:
THE COURT: Mr. Smukler, if you insist on summing up in the middle of trial, that's
fine, but you give up your summation, all right?
SMUKLER: May I be heard on that, sir?
THE COURT: Sure. All right.
SMUKLER: [sic] Stand up. Don't they do that in Philadelphia? [FN1]
FN1. We think the transcription here is clearly in error and that it is the court that
said, "Stand up, don't they do that in Philadelphia?"
SMUKLER: No.
THE COURT: They don't?
SMUKLER: They do.
THE COURT: You know, I have had some Philadelphia lawyers up here and they
were wonderful.
SMUKLER: I'm trying to be. I'm trying to do everything this court requires.
THE COURT: Fine. Then please stop summing up in the middle of the trial. If you
want to get up and testify, which you have done an awful lot--in fact, you introduce
things which I don't think the witness could, there is an objection. But I warned you
about this idea of summing up. Oh, I've got a wonderful point. I'm going to make
sure it gets home to the jury. I'm going to repeat it again and again. Fine, but you
give up your summation.
SMUKLER: Your Honor, on that last question that I asked, I started, if you'll but hear
me, I asked him regarding that in order to ask him during all that period of time that
you were being seen, what was the name of the doctor. I could not complete it. That
was the question.
THE COURT: Fine. Can't you just ask what was the name of those doctors? I must
tell you the entire exercise so far has *269 taken an hour and 15 minutes. Anybody
who was doing it properly could have done the whole thing that you've done up to this
point in approximately 17 to 20 minutes, but what you do is muck around and muck
around and you insist on summing up. And if you continue to insist on summing up,
you waive your summation. It's that simple. Ten minutes.
Later in Santa Maria's direct examination, Smukler sought admission of the reports of
the Metro-North doctor into evidence. When asked what they were being offered for,
Smukler said "that the railroad doctor examined him on 19 occasions between January of-." The court interrupted him to say, "That's not what it says at all. It doesn't say that.
They don't come in." Smukler then said, "It says that he was examined--." The Court
replied, "It doesn't say that. Next."
Soon thereafter, Santa Maria started to read from a request for medical services that
Smukler was attempting to offer into evidence and the court interrupted to say, "Look,
the whole deal with putting in an exhibit is not to have it read first." The witness said, "I
don't know, this is my first time up here." The Court: "First time you saw it?" The
witness: "No, this is my first time in court. I am nervous." The Court: "You mean to
183
say counsel didn't talk to you beforehand?" (pause) The Court: "Yes. Next question."
The plaintiff finished presenting his case, subject to his cross-examination, on
Wednesday, January 25. On Thursday, the defendant called its first witness, a medical
expert. In cross-examination, Smukler asked, "Did you report about a report of a Dr.
Mandel within the confines of your report?" There was an objection on the grounds that
the Mandel report was not in evidence. The following ensued:
SMUKLER: Your Honor, this gentleman has reported on an EMG report, and I have a
right to cross-examine him on it.
THE COURT: You can't. If he didn't have it, you can't cross-examine him about the
report.
SMUKLER: He did have the report, and he reports on it.
THE COURT: You asked him if he had the report, and he says here that he didn't have
it. You're stuck with the answer.
SMUKLER: I'm stuck with the answer that he has in here that he reviewed the report
and he says-THE COURT: You're finished. Sit down. Ladies and gentlemen, take a break. I've
made a ruling. Sit down. Mr. Marshal, assist him to sit down.
After the jury left the courtroom, the court proceeded:
THE COURT: Mr. Smukler, I am holding you in contempt and I will give you 10
minutes to make any-SMUKLER: I'm sorry.
THE COURT: --petition you wish to before I sentence you. Do you understand me?
You have counsel apparently with you. She can-SMUKLER: She is not counsel.
THE COURT: Well, then, you will have to do it on your own. You have 10 minutes.
SMUKLER: To do what, Sir?
THE COURT: To make any pitch you want to.
SMUKLER: Okay.
THE COURT: You're going to be sentenced for contempt.
SMUKLER: Okay, okay.
THE COURT: Section 401, Title 18, provides, "A court of the United States shall have
power to punish by fine or imprisonment, at its discretion, such contempt of its
authority, misbehavior of any person in its presence."
Mr. Smukler, do you have anything to say for yourself?
SMUKLER: Yes. I think the actions of the Court and the irate manner in which it
proceeded in front of this jury requires me to ask for a mistrial, your Honor.
THE COURT: Mistrial is denied. All of the activities which brought about the
contempt were intentionally done and, since they were intentionally done, that is like
asking for a mistrial since you see you are losing the case. You are not getting it.
*270 After Smukler sought to get his objection to the handling of the report on the
record, the exchange continued:
SMUKLER: And if I can't ask on cross-examination of a doctor what he says in his
report regarding EMG findings, then something is wrong.
184
THE COURT: Something is wrong.
SMUKLER: Your Honor, let me finish, and I'm done.
THE COURT: Something other than that is wrong, but we will get to that.
SMUKLER: As you wish, your Honor. Your actions in front of this jury to me
personally-THE COURT: To you personally?
SMUKLER: To me personally, as an individual, has hurt my client during the course
of this trial.
I'm done.
THE COURT: You are done.
SMUKLER: I am done.
THE COURT: You have an opportunity to hire a lawyer.
SMUKLER: I will do so.
THE COURT: Good, hire him.
I have to tell you, I have seen people who were arrogant before, but nothing like the
arrogance that exuded from you. You are going to do what you please, regardless of
what the Court rules. You are going to do exactly what you want to do. I have never,
never in 22 years had to tell a lawyer two, three times and then tell a marshal to go and
tell him, force him to sit down.
Is that what happens in Philadelphia?
SMUKLER: Forget Philadelphia.
THE COURT: No, I am not going to forget Philadelphia because that is where you are
from. Is that true?
SMUKLER: Yes, your Honor.
THE COURT: And that apparently is where you have tried your cases.
SMUKLER: I have tried 50 cases in this court.
THE COURT: I have had lots and lots of cases in this court-SMUKLER: I'm sure you have.
THE COURT: --and your actions are much like Chakwe [sic] Lumumba, who was in a
criminal case and was the only one I ever held in contempt.
The problems continued after this exchange. Later that afternoon, after chiding Smukler
for having "poorly, if ever, prepared," the court said, "[O]thers saw you motioning to the
witnesses, the four witnesses you had [meaning the fellow conductors] during crossexamination, indicating what the answer should be." Smukler denied this as "absolutely
untrue." The judge's law clerk was then called as a witness and said that Smukler
motioned either in an affirmative or negative way during the cross-examinations.
Smukler stated to the court, "I have been a lawyer for 40 years and I have never been
accused of that. If I had done it, it would have been proper for Your Honor to have
called me to sidebar--if I did it, it was unintentionally and that has nothing to do, in my
opinion, with what just happened here." The court said:
It is a buildup of things ... you are told not to sum up, you do what you please. You are
told not to do things, and you go ahead and you do what you want. And that's the way
you operate ...
When Smukler made later reference to the court's contempt holding, the court said that
185
the reason for holding him in contempt was his "failure to obey a direct order of the Court
and for your display of absolute arrogance and just an intent not to pay any intention on
the orders of the court. It is very simple. I told you to sit down. You wouldn't. I told
you to sit down again. You wouldn't." Smukler said, "Come on, your Honor, that I
wouldn't sit down?" The Court: "Come on yourself. This is a continuation of your
arrogance. If you wanted to show me something, you could have done it after the jury
left. But no, you wanted to make sure that the jury knew that you had no regard for the
lawful authority of this court. In that way, sir, you are in contempt--."
At the time of the afternoon break, the court said, "Mr. Smukler, you indicated you had
tried 50 cases in this district this morning. Have you ever been admitted to the bar *271
of this district?" Smukler said, "No, never. I have been before the circuit." The court
said, "You think that things are done from the seated position and, believe it or not, there
is a requirement that you be admitted to the bar."
After the trial was adjourned, the court said to Smukler that it expected that he would
return to trial the following Monday with the local counsel who had filed the plaintiff's
complaint. The court added that "[t]he last time I looked, it was against counsel ethics to
share fees with somebody who is not a member of the bar, so I guess he had better
come."
On Friday morning, the court held a sentencing for contempt at which Smukler appeared
with private counsel and with Cye E. Ross, the local counsel for Santa Maria. Smukler's
lawyer moved for Smukler's formal admission to the court pro hac vice, but the court
denied the motion. The court then told Ross that it expected him to be there to finish the
trial of the case on Monday morning; Ross could have Smukler as a legal assistant, but
Smukler would not be permitted to ask any questions.
Smukler's private counsel
requested and obtained an adjournment of the contempt sentencing until February 14,
1995.
On Monday afternoon, the trial resumed.
Ross introduced local counsel Frank
Cerniglia, an attorney in his office, who then proceeded to represent Santa Maria. The
first order of business was a renewed motion for Smukler's admission pro hac vice and,
when that was denied, a renewed motion for mistrial. Local counsel argued that despite
his efforts to prepare, he was no substitute for counsel who had been present and involved
in the case from the beginning. This motion, too, was denied.
After testimony by a medical expert for the defense, Santa Maria was called back for
cross-examination.
During its questioning, Metro-North sought to demonstrate
discrepancies between his depositions and testimony as to the circumstances of his fall,
his conduct thereafter, the extent of his injuries, and his previous accidents. Metro-North
also questioned Santa Maria's statement that he would have been homeless after the
accident but for his parents, asking if it were a fact that after the accident he was
receiving benefits of $310 every two weeks.
Following the close of evidence, the charging conference and the charge, the jury was
186
out for just under two hours and brought in a defendant's verdict on Wednesday, February
1, 1995.
On February 14, 1995, Smukler submitted legal papers to the court shortly before the
time set for his contempt sentencing and the court adjourned the matter. On February
27, 1995, the court issued an order vacating the finding of contempt.
In the order, the court said that "all counsel who regularly appear in the Southern District
of New York are aware that in arguing evidentiary rulings they cannot state before the
jury, things as fact without proof nor even an expectation of proof. The contemnor
continued to violate this rule throughout the trial and also engaged in other improper
courtroom antics." Additionally, the court stated that Smukler appeared as trial counsel
despite the fact that he was not a member of the bar of the district, and that "[t]his, along
with other improprieties which will be discussed below, formed the background for the
contempt finding."
The court then went on to say that Smukler had been held in contempt when he "wished
to dispute an evidentiary ruling by arguing that he had knowledge that the facts as given
by the witness were not true." The court noted that, as a result of an incident which had
occurred before he became a judge, he always instructed counsel to remain seated while
the jury entered and left the courtroom, and that in this trial "[o]n every occasion in which
there was a break, I excused the jury and instructed counsel for both parties to sit or
remain seated." The court elaborated on the record by stating that after receiving a
contrary ruling from the court, Smukler "let out a grunt of exasperation, throwing out his
hands and looking at the jury. Although directed to sit down by me, he chose not to do
so and, instead, momentarily blocked the jury's path to make sure that they were aware of
his exasperation." He was again told to sit down and *272 again refused to do so, and in
fact had "continued standing in place as the jury left while the Marshal had to walk some
35 to 40 feet to escort him to his seat." The court added that "the entire display was
obviously intended to cause a mistrial" since counsel understood that his case "was being
lost by his own ineptitude and lack of understanding of the rules of evidence,
unpreparedness, and general lack of competence."
The court further added that its determination as to Smukler's desire to obtain a mistrial
was based "not only on his demeanor, but also on the fact that during the crossexamination of his own witnesses, he was caught as he continually sought to signal
them...."
The court went on to say that there was "absolutely no doubt in [its] mind that Joseph
Smukler was in contempt of court and deserves to be punished" but that the maximum he
would be fined would be from $100 to $250. Because Smukler hired partners from two
large New York law firms to represent him in the contempt matter, the court assumed that
"his legal fees will far exceed that amount." The court also noted that he had failed "to
obtain his portion of what he viewed as most likely a juicy settlement of Mr. Santa
Maria's claim against Metro North." In the judge's busy court, there was "little time to
be wasted on the antics of people like Joseph Smukler," and "it would add nothing to the
187
dignity of this court to continue this proceeding." By vacating the contempt, the court
would be "rid of an unwanted and burdensome matter," and it was "in the interests of
judicial efficiency" and not for the reasons advanced by Smukler's counsel, that the
contempt was vacated.
Santa Maria now appeals the jury's verdict against him.
DISCUSSION
Santa Maria raises four issues in this appeal. First, he asserts that the trial court should
have charged the jury on the doctrine of res ipsa loquitur. Second, he claims he was
prejudiced by the court's decision to allow Metro- North to question Santa Maria
regarding monetary benefits he received as a result of his injuries. Third, he contests
several evidentiary rulings. Finally, Santa Maria claims that the trial court erred in
denying his motion for mistrial. Because we find his final claim determinative, we
discuss the first three claims only briefly before turning to the merits of Santa Maria's
mistrial contention.
A. Res Ipsa Loquitur, Admissibility of Benefits Payments, and Other Evidentiary
Rulings
[1][2] We find that the district court properly rejected Santa Maria's request that the jury
be instructed on the doctrine of res ipsa loquitur. In order to prevail under a res ipsa
loquitur theory, a plaintiff must show that
(1) the event was of a kind which ordinarily does not occur in the absence of someone's
negligence; (2) it was caused by an agency or instrumentality within the exclusive
control of the defendant; and (3) it was not due to any voluntary action or contribution
on the part of the plaintiff.
St. Paul Fire & Marine Ins. Co. v. City of New York, 907 F.2d 299, 302 (2d Cir.1990);
see generally Restatement (Second) of Torts § 328D (1965). Here, the doctrine of res
ipsa loquitur does not apply because Santa Maria testified that he was napping alone in a
cubicle on the cot when it broke. Though the cot was supplied by Metro-North, it was not
within the exclusive control of the defendant as a matter of law because a third party,
namely Santa Maria, had access to the cot when it allegedly broke. See St. Paul Fire,
907 F.2d at 303.
[3][4] With regard to Santa Maria's claims of evidentiary errors and improper benefits
questioning, we need not review these issues because we are vacating this case for the
reasons discussed below. The evidence and questioning at the new trial will inevitably
proceed differently from the first trial, and there is no certainty that Santa Maria's current
claims will be renewed by these future proceedings.
We note, however, that
photographs of the collapsed cot excluded by the court should not be excluded solely for
the reason that the cot was not in its original location, as it was Metro-North that moved
the cot. We note also that the general *273 rule in FELA cases is that evidence of
payments made to plaintiff from collateral sources is not admissible, Eichel v. New York
Central R.R. Co., 375 U.S. 253, 255, 84 S.Ct. 316, 317, 11 L.Ed.2d 307 (1963) (per
188
curiam), though such evidence may be admissible if the plaintiff puts his financial status
at issue. See Lange v. Missouri Pacific R.R. Co., 703 F.2d 322, 324 (8th Cir.1983).
Should the court find evidence of benefits payments admissible at the new trial, it of
course must carefully limit the admission of the evidence so as to avoid undue prejudice
to either party, taking into account that railroad sickness benefits are payable for only a
limited period of time. 45 U.S.C. § § 351 et seq. (1994).
B. Motion for a New Trial
[5] We now turn to Santa Maria's claimthat the trial court erred in failing to grant a new
trial. Santa Maria contends that he was prejudiced by the district court's antipathy
toward both the merits of the case and Smukler, plaintiff's trial counsel, and by the court's
refusal to grant a continuance in order to allow replacement counsel to prepare. We
agree, and therefore vacate the judgment and remand for a new trial in front of a different
judge.
[6][7] A new trial must be granted if the court determines that "the verdict is against the
weight of the evidence, that the damages are excessive, or that, for other reasons, the trial
was not fair to the party moving." Montgomery Ward & Co. v. Duncan, 311 U.S. 243,
251, 61 S.Ct. 189, 194, 85 L.Ed. 147 (1940). We review the district court's refusal to
grant a new trial for abuse of discretion. See Witco Chemical Corp. v. Peachtree Doors,
Inc., 787 F.2d 1545, 1548 (Fed.Cir.), cert. dismissed, 479 U.S. 877, 107 S.Ct. 258, 93
L.Ed.2d 241 (1986); Allison v. Ticor Title Ins. Co., 979 F.2d 1187, 1196 (7th Cir.1992).
[8][9] Although we have repeatedly observed that due process requires a fair trial rather
than a perfect trial, see, e.g., Ricketts v. City of Hartford, 74 F.3d 1397, 1416 (2d
Cir.1996); United States v. Manko, 979 F.2d 900, 905 (2d Cir.1992), cert. denied, 509
U.S. 903, 113 S.Ct 2993, 125 L.Ed.2d 687 (1993), a court must strive for "that
atmosphere of perfect impartiality which is so much to be desired in a judicial
proceeding." Glasser v. United States, 315 U.S. 60, 82, 62 S.Ct. 457, 470, 86 L.Ed. 680
(1942). Indeed, "[a] trial judge must be especially cautious and circumspect in language
and conduct during a jury trial." Coast-to-Coast Stores, Inc. v. Womack-Bowers, Inc.,
818 F.2d 1398, 1401 (8th Cir.1987). After reviewing the entire record, we conclude that
the court did not behave impartially.
Throughout the trial, the court displayed an antipathy to Santa Maria's claim that went
beyond judicial skepticism. Metro-North presented evidence that Santa Maria was a
litigious plaintiff whose neck had been hurt prior to the cot incident and who had brought
four previous claims against Metro-North for other injuries while represented by the same
firm. In essence, Metro-North tried to prove Santa Maria was a malingerer and was
aided in its efforts by the court's comments in open court and its questioning of witnesses.
For example, the jury could have inferred from the judge's remark "[y]ou mean to say
counsel didn't talk to you beforehand?" that the judge thought Santa Maria had been
improperly coached. The sarcastic cross-examination by the court of the plaintiff's
expert witnesses, e.g., "is [outpatient] the name of a hospital?" and "did you wear the
white smock up here?", plainly conveyed the court's skepticism as to the plaintiff's case.
189
To be sure, having a doctor appear in a white coat invited some comment and perhaps
justified some of the court's annoyance, but hardly such remarks. The court's behavior
tainted the jury's perception of the merits of Santa Maria's claim and unfairly prejudiced
the plaintiff.
While credibility of the plaintiff was sharply at issue in the case, Smukler's credibility
also played a major role. Defense counsel had, in its opening statement and subsequent
interrogations, suggested that Santa Maria, a New York plaintiff who had been previously
represented by this Philadelphia lawyer with Philadelphia medical experts, had gone back
to Smukler to fabricate a case against the railroad. Metro-North's attempt to put the
plaintiff's lawyer on trial, so to speak, was aided by the court's rather one-sided
handling*274 of Smukler's leading questions [FN2] and follow-up questions, which the
court characterized as testifying and summation. Though a court must control courtroom
proceedings and must reprimand improper conduct by attorneys, see e.g. United States v.
DiPaolo, 804 F.2d 225, 231 (2d Cir.1986) (holding that judge may require attorney to
stand to make an objection), here the court did not even provide Smukler an opportunity
to complete his explanations. For example, the court refused to allow Smukler to
explain the basis for admission of the reports of a Metro-North doctor, summarily stating
"they don't come in."
FN2. In connection with Metro-North's first witness, a Dr. Soffin, Metro-North
counsel said, "So, would you say then that whatever trauma he suffered to his
neck was no minor trauma at that point, it could cause a loss of curvature to his
neck?" Smukler said, "Your Honor, I would appreciate it if he would not lead the
witness and ask him questions." The court replied, "Yes. Go ahead and answer
that one." This was at least as much a leading question as any asked by Smukler.
The court apparently felt justified in its behavior because it believed that Smukler
grossly transgressed the bounds of lawyerly conduct. It even compared Smukler to an
attorney it previously had before it, Chokwe Lumumba. In United States v. Lumumba,
794 F.2d 806 (2d Cir.), cert. denied, 479 U.S. 855, 107 S.Ct. 192, 93 L.Ed.2d 125 (1986),
however, we upheld attorney Lumumba's conviction for criminal contempt for constantly
badgering the judge and intimating that the judge was racist ("a disgusting bigoted partial
joke") and less intelligent than Lumumba ("I probably finished higher in my law
school...."). Id. at 812-13. Here, Smukler said nothing even approaching the level of
disrespect displayed by Lumumba and cannot fairly be compared to him.
Nevertheless, when Smukler failed to sit down quickly enough to suit the court, the court
held him in contempt. As the court said, Smukler was held in contempt for "failure to
obey a direct order of the Court and for your display of absolute arrogance and just an
intent not to pay any intention on [sic] the order of the court. It is very simple. I told
you to sit down. You wouldn't. I told you to sit down again. You wouldn't." We
doubt very much if the now-vacated finding of contempt could have been sustained on
this record on appeal, [FN3] although the court later attempted to expand on the record in
190
recounting the incident.
FN3. At oral argument in this court, Smukler represented that in Philadelphia
courts it was customary to stand up when the jury enters or leaves the courtroom
and that this accounted for his failure to immediately obey the trial judge.
After the court held Smukler in contempt, it learned that Smukler, an out-of- state
attorney, had never formally filed for admission to the court pro hac vice; the court
consequently denied Smukler's motion to appear as such. It is true that the rules of the
Southern District require that an out-of-stateattorney must seek permission "to argue or
try a particular case in whole or in part as counsel or advocate" and must provide an
updated certificate of good standing in his own state bar. S.D.N.Y. & E.D.N.Y. Gen.R.
2(c). Concededly, Smukler did not follow this procedure. He had, however, appeared
in many FELA cases in New York and other federal courts, and explained during at least
two pretrial conferences that he was from Philadelphia and would be appearing as trial
counsel with associate New York local counsel. While Smukler was mistaken in not
following the letter of the local rules, the court permitted him to commence the trial.
It has long been the policy of this circuit to permit out-of-state lawyers who specialize in
areas of federal law such as FELA to work with local counsel on a plaintiff's federal
claim. Spanos v. Skouras Theatres Corp., 364 F.2d 161 (2d Cir.) (en banc), cert. denied,
385 U.S. 987, 87 S.Ct. 597, 17 L.Ed.2d 448 (1966). We note that a FELA plaintiff such
as Santa Maria may have a particular need to hire out-of-state counsel because of the
highly specialized nature of the law in this area. As stated by Judge Friendly in Spanos:
In an age of increased specialization and high mobility of the bar, th [e right to legal
assistance] must comprehend the right to bring to the assistance of an attorney admitted
in the resident state a lawyer licensed by "public act" of any other state who is thought
best fitted for the task.
*275 Id. at 170. We take it that Smukler assumed, in light of this policy and his
representations to the court, that he had been implicitly admitted pro hac vice in order to
try the Santa Maria case. Cf. Kirkland v. National Mortgage Network, Inc., 884 F.2d
1367, 1370-71 (11th Cir.1989) (attorney after introduction functioned as counsel for five
months without objection). We do not suggest that this assumption was reasonable and
we trust that attorneys not admitted to a court will abide by the proper procedures. In the
context of this case, however, the court's refusal to admit Smukler pro hac vice could be
attributed its general feeling about the frivolous nature of Santa Maria's claims and
Smukler's performance at trial.
After the court's pro hac vice ruling, it ordered local counsel to continue the case in place
of Smukler and denied local counsel's motion for a continuance to prepare. Though the
court allowed Smukler to serve as a legal assistant to local counsel, it did not permit
Smukler to ask any questions. The court stated more than once that the replacement
counsel had plenty of time to prepare, just as in United States v. Tramunti, a previous
191
case before it requiring appointment of replacement counsel.
In United States v.
Tramunti, 513 F.2d 1087 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 55, 46 L.Ed.2d 50
(1975), however, we found that by failing to grant a four-day continuance, the court
deprived the party of effective assistance of counsel. Id. at 1116-17. Though Tramunti
was a complex conspiracy case, it nevertheless stands for the proposition that, when
extenuating circumstances arise, a court should grant the parties a reasonable continuance
to prepare. Here, the court should have granted a modest continuance to Santa Maria to
allow the replacement counsel to come "up to speed," especially given the complicated
medical nature of the case.
We note, however, that even if the replacement attorney were prepared, the change in
attorneys doubtless conveyed to the jury that Santa Maria's case was not meritorious.
The jury had observed the conflicts between the court and Smukler and it had heard the
court's questions casting a negative light on the plaintiff's claims. Even though it was an
apparent attempt by the court to minimize prejudice, for the jury to then see Smukler
simply sitting by, unable to speak on the record, certainly must have created a very bad
impression of Santa Maria's case, if not have been downright devastating to it. The
remedy of removing Smukler from further active participation in the trial was, in short,
too drastic and the effect on the plaintiff's case too severe for us to conclude that plaintiff
had a fair trial.
[10] A judge must strive to be a model of patience and impartiality, even when faced
with an irritating attorney. Though often difficult to maintain, judicial decorum is
necessary to preserve the litigant's right to a fair trial. Here, the court's behavior
prejudiced Santa Maria, and it was an abuse of the court's discretion not to grant Santa
Maria's motion for a new trial. We believe that Santa Maria should be given another day
in court to argue his action.
CONCLUSION
For the reasons set out above, we vacate the judgment and remand for new trial before a
different district court judge. We order that Smukler, if his client wishes him to proceed
further in this matter, move under the Southern District Rules for admission pro hac vice,
though we do not, of course, comment on how the court should decide that motion.
81 F.3d 265
192
THIS DECISION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE
PUBLICATION IN THE NEW YORK REPORTS.
Court of Appeals of New York.
The PEOPLE & c., Respondent,
v.
Andre ARNOLD, Appellant.
June 4, 2002.
Camilla B. Taylor, for appellant.
Madeleine Guilmain, for respondent.
CIPARICK, J.
At issue on this appeal is whether a trial court, in the exercise of discretion, can call its
own witness after both the People and the defense have rested. Under the circumstances
presented here, we conclude that it was error for the court to do so.
On May 12, 1998, a team from the Manhattan North Narcotics Zone that included
Detective Rodriguez and Police Officer Hernandez went to an apartment in Manhattan to
execute a search warrant. Detective Rodriguez had called the Police Department's
Emergency Services Unit (ESU) to assist the team in gaining entry to the apartment
through a heavily reinforced door. Once at the location, ESU broke down the door,
entered the apartment and "secured" the premises by handcuffing--hands behind their
backs--the three people there, including defendant. The narcotics officers then entered the
apartment. They reported that in addition to the discovery of 174 vials of crack cocaine
and $1279 in cash on the floor near defendant, a search of defendant yielded 70 packets
of heroin, $922 in cash and a loaded handgun tucked in the back of his waistband.
Defendant was charged with criminal possession of drugs and a weapon.
At a bench trial, defendant maintained he was framed by the narcotics officers who he
claimed planted the drugs, cash and gun on his person. Defendant's theory was that if
those items were actually on his person when the police entered the apartment, ESU
would have discovered them when they cuffed him. The People contended that, although
it was the function of ESU to secure the premises, they did not always frisk or search
those they handcuffed. After both sides rested, the Trial Judge called as a court witness,
over defendant's objection, an ESU member, Sergeant Miller, who had been at the scene.
193
Supreme Court convicted defendant of criminal possession of a controlled substance in
the fourth degree and criminal possession of a weapon in the third degree. The Appellate
Division affirmed, finding that the Trial Judge's decision to call Sergeant Miller as a
witness was permissible "for the purpose of clarifying and satisfying itself as to the truth
in its role as the trier of fact" [284 A.D.2d 143, 144] [citing People v. Kovzelove, 242
A.D.2d 477 [1st Dept], lv denied 91 N.Y.2d 875][1997]. We now reverse.
At trial, the People called as witnesses narcotics officers Detective Rodriguez and
Officer Hernandez. Detective Rodriguez testified that when he and the ESU team arrived
at the premises, he showed them the apartment door and then waited in the hall while
ESU entered and secured the premises. He did not see what ESU did while inside.
Detective Rodriguez testified that after ESU turned the scene over to the narcotics team,
he searched one of the other suspects in the apartment while Officer Hernandez searched
defendant. Officer Hernandez testified that, when he entered the apartment, he did not
believe that the occupants had been searched by ESU prior to being handcuffed.
Moreover, it was his understanding that ESU, when securing a premises, did not
ordinarily frisk or search individuals before handcuffing them. Officer Hernandez also
testified that upon searching defendant, he recovered the heroin and cash in addition to
the handgun concealed under defendant's clothing at the small of his back. The People
did not call Sergeant Miller from ESU, although he was included on their witness list.
Immediately after the People rested, defense counsel requested that Sergeant Miller be
made available as a defense witness later in the day.
Defendant then took the stand. He testified that he resided on an upper floor of the
building and that, on the day he was arrested, he was carrying about $2500 in cash, $1500
of which he intended to give to a real estate broker as a deposit on a new apartment.
Before going to meet the broker, however, he stopped at the downstairs apartment to lend
money to his friend who lived there. While waiting for his friend to come home, two
other individuals, defendant's girlfriend and another neighbor, arrived at the apartment.
[FN1] Defendant testified that, after entering, ESU officers patted him down, searched
him and then placed him in handcuffs. Defendant also testified that, when Officer
Hernandez entered the apartment, he asked the ESU officers whether the prisoners had
been searched and was told that they had been. Defendant claimed that it was not until he
was placed in a police van that Officer Hernandez told him that police had found drugs
and a gun in the apartment. Defendant told Officer Hernandez that it was not his
apartment and those items were not his.
FN1. The two other individuals, also arrested and charged, pleaded guilty to
misdemeanor drug possession.
After defendant testified, the following exchange took place:
"COURT: We have Sergeant Miller outside from the Emergency Services Unit. We
will get him after lunch.
194
2:10 p.m. and have Sergeant Miller here at that time.
***
"[DEFENSE]: I would ask to be able to speak to the Sergeant so that I may not even
have to call him as a witness.
"COURT: Do it at 2 p.m."
When trial resumed for the afternoon session, defense counsel, apparently after speaking
to Sergeant Miller, rested without calling any further witnesses. After discussing a motion
to dismiss and the details of summation, the court inquired:
"COURT: But you have Sergeant Miller outside, is that correct?
"[PEOPLE]: Sergeant Miller is outside, Judge.
"COURT: All right. I would want to ask him a couple of questions. Bring him in,
please.
"[DEFENSE]: Judge, with all due respect what is the authority for your doing that?"
Defense counsel placed an objection on the record. Testifying as a court witness,
Sergeant Miller stated that he could not recall events on the day of defendant's arrest.
However, he testified that when securing premises, ESU did not always frisk or search
individuals before handcuffing them, and there was no determining factor for when a
frisk was done. During the People's summation, the prosecutor summarized Sergeant
Miller's testimony as "at most the ESU Unit would have performed a pat down" but that
the sergeant had no recollection of whether the defendant was searched at all on the day
of his arrest.
Although this Court has on several occasions examined whether a court's questioning of
a witness called by counsel constituted error, we have not previously considered the
situation where a trial judge calls its own witness. Nonetheless, the same principles apply.
Trial judges have wide discretion in directing the presentation of evidence but must
exercise that discretion appropriately and without prejudice to the parties (see CPL
260.30).
In our adversarial system of justice, the roles of the parties and the decision-maker are, in
theory, separate and well defined (1 LaFave, Israel and King, Criminal Procedure §
1.4[c], at 173 [2nd ed] ). In actuality, however, our system has evolved into what
commentators have called a "modified" or "regulated" adversarial system (id. at 174). As
a practical matter, trial courts sometimes must take a more active role in the presentation
of evidence in order to clarify a confusing issue or to avoid misleading the trier of fact
(see People v. Moulton, 43 N.Y.2d 944, 945 [1978]; People v. Jamison, 47 N.Y.2d 882,
883 [1979] ). Typically, these cases arise in the context of jury trials.
While "neither the nature of our adversary system nor the constitutional requirement of a
fair trial preclude a trial court from assuming an active role in the truth-seeking process,"
the court's discretion is not unfettered (Jamison, 47 N.Y.2d at 883). The overarching
principle restraining the court's discretion is that it is the function of the judge to protect
the record at trial, not to make it (see Yut Wai Tom, 53 N.Y.2d 44, 58 [1981] ). Although
the law will allow a certain degree of judicial intervention in the presentation of evidence,
the line is crossed when the judge takes on either the function or appearance of an
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advocate at trial (see id. at 58; see also People v. DeJesus, 42 N.Y.2d 519 [1977]; People
v. Mees 47 N.Y.2d 997 [1979] ).
There is no absolute bar to a trial court asking a particular number of questions of a
seated witness (see Yut Wai Tom 53 N.Y.2d 44; Mees 47 N.Y.2d 997; or recalling a
witness to the stand (see Thom v. Jaymee Fashions, Inc., 35 A.D.2d 946 [1970], affd, 29
N.Y.2d 534 [1971]; see also People v. Kovzelove, 242 A.D.2d 477, lv den, 91 N.Y.2d
875)); or even allowing the People in narrow circumstances to re-open their case after a
defense motion for a trial order of dismissal (see People v. Whipple, 97 N.Y.2d 1 [2001]
), when doing so advances the goals of truth and clarity. A court may not, however,
assume the advocacy role traditionally reserved for counsel (see e.g. Matter of Carroll v.
Gammerman, 193 A.D.2d 202 [1993] ), and in order to avoid this, the court's discretion
to intervene must be exercised sparingly (People v. Jamison, 53 N.Y.2d at 883). [FN2]
FN2. We, of course, do not deal here with a case calling for special expertise, or
other such circumstances, that may require a trial court to call its own witness (see
e.g. Family Court Act, article 3, § 350.4 [2] ). We note that, even among
jurisdictions where a rule of evidence or statute allows a court to call a witness,
the practice is "not particularly desirable" and should be engaged in sparingly, so
as to retain the court's impartiality (see e.g. Smith v. United States, 331 F.2d 265,
273-275 [8 th Cir], cert. denied, 379 U.S. 824, reh'g denied 379 U.S. 940 [1964];
State v. Davis, 566 S.W.2d 437, 447-448 [Mo.1978]; see also State v. Medeiros,
80 Haw 251, 259 [1995] ).
We do not hold that a court may never call its own witness over the objection of a party.
In those unusual circumstances in which a court feels compelled to do so, it should
explain why, and invite comment from the parties. In that way, the court can consider
what it aims to gain against any claims of possible prejudice. Moreover, an appellate
court will have a basis on which to review the trial court's exercise of discretion. In the
case before us, the trial court gave no reason for calling the witness and did not articulate
the consequences of doing so. The court simply called the witness after both sides had
rested and had consciously and deliberately chosen not to call him.
Under the circumstances of this case, the court abused its discretion as a matter of law. It
assumed the parties' traditional role of deciding what evidence to present, and introduced
evidence that had the effect of corroborating the prosecution's witnesses and discrediting
defendant on a key issue. It was clear by the time Sergeant Miller was called to the stand
that his testimony would bear directly on the contested issue of whether ESU searched
defendant when they placed him in handcuffs. The dispute on this crucial issue came
down to a choice between defendant's testimony and that of Officer Hernandez. In its
effect, Sergeant Miller's testimony did not either bolster or directly contradict defendant's
testimony, since Miller could not recall what occurred in the apartment on the day of
defendant's arrest. His testimony regarding ESU practice was however the only statement
by an ESU member that cast doubt on defendant's claim that he was searched before the
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narcotics team entered the apartment.
Although it does not appear from the record that the Trial Judge intended to give an
advantage to either side, he abused his discretion in calling Sergeant Miller on a key issue
when both parties chose not to. By calling Sergeant Miller, the court deprived defendant
of the ability to request that the trier of fact draw a negative inference from the People's
failure to produce an ESU officer during its case. Loss of that inference, coupled with the
generally damaging testimony of Sergeant Miller, create a significant probability that the
verdict would have been affected had the error not occurred (see People v. Crimmins, 36
N.Y.2d 230, 242 [1975] ). Thus we cannot say the error was harmless.
Accordingly, the order of the Appellate Division should be reversed and the case
remitted to Supreme Court for a new trial.
Order reversed and a new trial ordered.
Chief Judge KAYE and Judges SMITH, LEVINE, WESLEY, ROSENBLATT and
GRAFFEO, concur.
2002 WL 1162902, 98 N.Y.2d 63, 2002 WL 1162902 (N.Y.), 2002 N.Y. Slip Op. 04467
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