Deliberations

IN DEFENSE OF LITIGATION CONSULTING...

Every so often, the field of Trial Consulting comes under attack.  Despite our 35 year history, some in the legal field continue to believe that the use of consultants is equivalent to buying car seat warmers.  Sure it feels good in the winter, but warm butts have nothing to do with getting you where you want to go.

Everyone has the right to their opinion.  However, things change dramatically when a judge or prosecutor tries to utilize the law to impose this opinion on parties to a case.

Last year, Sonia Chopra and I (Matt McCusker) wrote an Amicus Brief for an appeal being heard in front of the Iowa Supreme Court.  We were prompted to act when a prosecutor (and judge) prevented a criminal defendant from utilizing his own legally attained funds to hire a consultant to work with his defense team.  According to the State, this service was a “luxury” that the defendant didn’t have a clear right to.  Our brief outlined numerous arguments that questioned this perspective.

Recently, the accused Fort Hood shooter (Major Nidal Hassan) encountered opposition from the prosecution when his team requested funds for help in jury selection and a media analysis exploring how Mr. Hassan has been painted in the press.  In fact, one of the prosecutors suggested that a jury consultant would be doing “tasks performed routinely by attorneys around the world every day.”

Rather than focusing on the problems with the prosecutor’s statement (e.g. lack of jury systems around the world, limited experience many attorneys have with jury selection, unique training consultants have in media analysis and voir dire development, etc.),  I take issue with the implication that consultants do not bring significant added value to a legal team.

The term “consultant” can be defined as a specialist who provides expert advice.  Doctors regularly ask for consults from specialists.  Most major companies hire management and marketing consultants to provide recommendations.  Are these extravagant luxuries?  Should doctors just assume an expertise in everything?  Should a CEO simply develop his or her own marketing plan or implement a homegrown HR process?  Most would think not.

However, popular use of a service is not proof of its efficacy.  Instead, we should turn to the free-market.  The field of Trial Consulting has exponentially grown in use over the last 30 years.  Similarly, the rates charged by successful consultants have risen significantly.  In a capitalist system, a product’s price tends to correlate with its perceived value.  If decade after decade, more attorneys, municipalities and corporations are willing to pay more money for litigation consulting, the value is proven.

 Some may agree that Trial Consulting is valuable, but oppose government-funded consulting to assist criminal defense teams.  This is a valid point.  However, they should also consider that governments across the country (Federal, State and Local) regularly utilize the services of Trial Consultants during high-stakes civil litigation.  So, tax dollars are already going to consultants for the most important government funded civil defenses.  Why should money not also go towards the most important government funded criminal defenses?

Blogger: Matt McCusker

 

How Does Nancy Grace Anger the French?

Last week’s news cycle was dominated by two criminal cases: Dominique Strauss-Kahn (or “DSK” as some in the media have affectionately dubbed him to avoid linguistic effort) and Casey Anthony (if you haven’t heard of this case, welcome back from that research trip in Antarctica).  Strauss-Kahn has been in the preliminary stages of being charged while the Anthony case has reached the exhausting challenge of jury selection, but both demonstrate a major conundrum within the U.S. Constitution: How does one balance freedom of the press with the right to a fair trial?

The French are up in arms (not literally) about the “perp walk” that Strauss-Kahn was paraded on after his arrest.  In France, this is viewed as unfair to defendants, as it casts them as guilty.  Perp walks are common in American justice and could certainly be argued as unduly prejudicial, but what has really gone over the edge is the media frenzy that has covered the story.  In addition to the massive onslaught of suppositions (some have even mentioned the words “serial rapist”), reporters and pundits have clearly painted an unfriendly narrative of “DSK.”

While I am no friend of the Messr. Strauss-Kahn, one only need look to the south at the Anthony trial to see the effects of a media frenzy.  The trial teams in Florida have been at wits end trying to find an impartial jury.  The massive media spectacle (much of which can be traced back to CNN’s Nancy Grace, who seemed to spout biased speculation on the case every night for months on end) has clearly endangered Anthony’s right to a fair trial.

The First Amendment of the U.S. Constitution makes clear that no law shall abridge the freedom of the press.  However, the Supreme Court has found that this freedom can be limited if there is a sufficient danger.  Interestingly, rulings regarding civil or criminal trials have become shifting lines in the sand and generally focus on the right of access, not the right to publish.   

While the First Amendment gets all of the fanfare (demonstrating the power of a well-crafted lead when writing), we also have the Sixth and Fourteenth Amendments that are just as important.  It’s great to have free speech, but if one can be unfairly imprisoned or punished by the courts, the speech ends up only being heard by cellmates.  As a result, our right to a fair trial is also a vital part of American life.

It is hard to argue that high profile trials do not put these Constitutional rights in conflict with one another.  Which begs the question: Which is more important, the public’s need to know or the individual’s right to fair judgment?  I’m guessing the answer depends on how guilty we think the person is.  Luckily, we have former-prosecutor Nancy Grace's "Swift Justice" to guide us in this evaluation. 

Blogger: Matt McCusker

 

St Patrick's Juries

Tomorrow is St. Patrick's Day, so I thought I'd write about the jury system in Ireland.  It turns out to be a complex and poignant topic. 

A thoughtful 1999 paper traces the struggles of Ireland's jury system up to that time.  It's called "The Jury System in Contemporary Ireland: In the Shadow of a Troubled Past," by Irish law scholars John D. Jackson, Katie Quinn, and Tom O'Malley, published in Law and Contemporary Problems.

"Formidable problems"

The paper explains how the "troubles" in Northern Ireland turned the great strength of the jury system into a great flaw.  A primary reason we have jurors, the authors write, is that a lay jury serves "as an independent buffer within the criminal justice system between the state and the individual."  But when jurors lose all trust in the state, as many citizens of Northern Ireland did, a system based on juries becomes lawless:

When the legitimacy of the state is questioned by a sizeable proportion of the community from which the lay element is drawn, however, and it proves difficult to obtain convictions, the jury system can present formidable problems of law enforcement, especially when the conditions are extreme enough to lend themselves to violence and intimidation.

The authors describe what the British government did to get convictions in this climate, most notably the no-jury trials recommended by a commission headed by Lord Diplock:  "Until recent years, when the violence has abated, 'Diplock' trials, as trials by judge alone in emergency cases have come to be called in Northern Ireland, accounted for around a third of all serious cases in the jurisdiction."  They go on to describe "measures which have reduced the right to jury trial [which] have mirrored changes in England and Wales, and, indeed, further inroads . . . by virtue of the nonjury courts established both north and south of the border."

History, culture, and jury trials

Many of these changes have been surprisingly uncontroversial, the authors claim.  They believe this is due not just to the government's acting to contract the jury trial, but also to cultural and historical forces:

For a variety of reasons, jury trial has not proved well suited to Irish circumstances. Jury intimidation and prejudice, distrust of the state, considerable community segregation, and the small and largely rural nature of the jurisdictions have combined to ensure that jury trial is by no means as entrenched in Irish legal culture as it is in England and Wales. Although a great number of these obstacles to the growth of a robust jury system have abated in recent times, jury trial has failed to flourish on the island.

And now?

I haven't found a good description of the Irish jury system today.  In 2006, the Guardian and other newspapers reported that as peace appeared to build in Ireland, the Diplock courts were being abolished -- "[b]ut judge-only trials will be retained for 'exceptional' cases where juries could still be intimidated, the Northern Ireland Office has proposed."

But that's as far current as I can bring it, at least without help.  Irish blogger Daithí Mac Síthigh hosted a great Blawg Review at Lex Ferenda today, the St. Patrick's Day Festival promised by Blawg Review's Ed. last week.  I'm hoping there's an Irish blogger who can bring me up to date on Irish juries. 

(Photo by Rona Proudfoot at http://www.flickr.com/photos/ronnie44052/607113954/; license details there.)

New Case, Old Law: The Seventh Amendment In The Ninth Circuit

Scholars love the Seventh Amendment, but for practicing lawyers, it doesn't come around much.  It's not often that a federal court of appeals gets to decide a good old-fashioned -- and I mean old-fashioned -- Seventh Amendment issue.  What exactly are the rules on when you get a jury trial and when you don't?  Today in Hale v. U.S. Trustee, the Ninth Circuit reviewed this rarely explored area, and got to rely on a 1908 Supreme Court case. 

"The judicial tyranny  that flows from the chambers of a biased Judge"

Big issues sometimes come up in small ways.  What was at stake in Hale was a $250 legal fee.  It was charged by Thomas Hale, an Idaho lawyer who provided "prepetition" services to debtors filing bankruptcy.  The opinion says that Mr. Hale prepared an bankruptcy petition for two debtors, but did not sign it or appear in the case.  The clients testified they did not understand they were appearing pro se and would need to be in court for important hearings; and the petition itself contained mistakes.  The bankruptcy judge found Mr. Hale's conduct unethical and his fee unreasonable, and ordered him to give the fee back. 

In addition to arguing that the bankruptcy judge was unfair ("This is not the first time that I have attempted to  protect the debtors and myself from the judicial tyranny  that flows from the chambers of a biased Judge"), Mr. Hale argued that the Seventh Amendment gave him a right to a jury trial on the issue of the reasonableness of his fee.

"The right of trial by jury shall be preserved"

In case you haven't looked at the Seventh Amendment lately, let's start there:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

Like so much of the rest of the Constitution, it's about line-drawing.  The clear cases are clear:  a negligence lawsuit is a "suit at common law," a request for an injunction isn't.  But where is the line between them, and on which side falls a a bankruptcy court's challenge to a lawyer's fee? 

The old 18th-century law courts test

The Hale court tells us that in Granfinanciera, S.A. v. Nordberg in 1989, the Supreme Court held that “[t]he Seventh Amendment protects a litigant’s right to a jury trial only if a cause of action is legal in nature and it involves a matter of ‘private right.’ ”  Granfinanciera set out a three-part test of this standard.  The first test is historical:  "First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity."  The Granfinanciera court explained:

Although the thrust of the Amendment was to preserve the right to jury trial as it existed in 1791, the Seventh Amendment also applies to actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century[.]

The second test is the more mundane, and familiar, distinction between law and equity:  "“Second, we examine the remedy sought and determine whether it is legal or equitable in nature."  And the third test addresses that issue of public and private rights:  “If a claim that is legal in nature asserts a ‘public right,’ . . . then the Seventh Amendment does not entitle the parties to a jury trial if Congress assigns its adjudication to an administrative agency or specialized court of equity. . . .  A case asserts a public right if it “arise[s] between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments,” . . . or involves “a seemingly private right” created by Congress “that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.”

Good in 1908, good today

A court starting from scratch here might have a long opinion coming, but the Hale court found that the Supreme Court had decided this issue already.  In re Wood, a 1908 Supreme Court case, held that bankruptcy judges could assess the reasonableness of fees without a jury back when the Bankruptcy Act of 1898 governed bankruptcy courts.  The Ninth Circuit held:

The Supreme Court has not overruled Wood. In addition, Wood is consistent with, and reaffirmed by, Granfinanciera. Determining the reasonableness of a debtor’s attorney fees is not analogous to a common-law cause of action ordinarily decided in English law courts in the late 18th century; instead, it is closely integrated into the public regulatory scheme of bankruptcy law that Congress created. We hold that Wood remains binding precedent and forecloses Hale’s argument that the Seventh Amendment includes a right to a jury trial on the reasonableness of attorney fees in bankruptcy proceedings.

(Photo by Tom 7 at http://www.flickr.com/photos/brighterorange/58793871/; license details there.)

Jury Trials For Everyone

Continuing on the theme of law professors with bold ideas about juries, Prof. Suja Thomas is back.

Prof. Thomas's article "Why Summary Judgment Is Unconstitutional" caught a lot of people's attention last spring. I wrote about it here, starting with "Say what?" She was serious, though. Summary judgment, the familiar workhorse of the civil justice system, is unconstitutional in Prof. Thomas's view because it allows judges to draw inferences from the uncontested facts, a job she believes can be done only by juries under the Seventh Amendment.

In fact, now that the Supreme Court has decided two cases dealing with a different procedural tool -- the motion to dismiss -- Prof. Thomas will take it a step further. Her new paper is "Why the Motion to Dismiss is Now Unconstitutional," at SSRN here, and noted here last month at Lawrence Solum's Legal Theory Blog.

Civil motion practice in a really small nutshell

If you've never filed a motion in a civil case (or just didn't keep up with Twombly and Tellabs last term), stay with me for a second, because this will sound mundane, but it matters.

There are three ways to end a civil lawsuit. You can settle the case; you can have a trial; or you can win the case on a pretrial motion decided by the judge alone. There are two kinds of motions that can end a lawsuit before trial: the motion to dismiss, and the motion for summary judgment. The difference is what the judge can look at when she is deciding the motion. In a motion to dismiss, the judge decides whether the plaintiff's complaint, standing alone, contains allegations that amount to a legal claim. In a motion for summary judgment, the party bringing the motion can submit other facts it believes are uncontested, and the judge has to decide whether those facts are really uncontested and, if they are, whether the law clearly says that one side or the other should win.

For decades, the established rule was that in deciding a motion to dismiss, the trial judge had to accept even the wildest allegations in the complaint as true. In two cases decided earlier this year, the Supreme Court changed that. In Bell Atlantic Corp. v. Twombly, the court said that a judge should dismiss a complaint that fails to allege "enough facts to state a claim to relief that is plausible on its face." The idea that judges can decide what was "plausible" at this early stage of a lawsuit is new, and Twombly sounds like they can decide not only whether the legal claim is plausible, but whether the facts alleged are plausible.

The Court went even beyond "plausible" in the second case, Tellabs, Inc. v. Makor Issues & Rights, Ltd. That was a securities lawsuit, so the precise claim the plaintiffs were making wouldn't exist if Congress hadn't created it. The Court said that since Congress created the claim, Congress could make the rules on when and how a judge should dismiss it. The Court said that the complaint could survive a motion to dismiss only if the judge could make an inference -- that's the key word -- from the complaint's allegations that is "more than merely plausible or reasonable -- it must be cogent and at least as compelling as any opposing inference."

Still with me?

No inferences, period.

Prof. Thomas believes trial judges have no business interpreting the facts in civil cases, whether you call it making inferences, deciding what's plausible, or anything else. (I'm putting her most of text in footnotes to make this easier to read; that's in Note 1.) She acknowledges that it seems reasonable to say that if Congress created the claim, Congress can let judges dismiss it (Note 2) -- but that reasonable assumption is wrong, she says, parsing the Seventh Amendment (Note 3).

In short, she says, when Congress sends a new legal claim out into the world, it's gone. The only people who can reject or interpret the facts in a plaintiff's complaint made under that new claim are jurors (Note 4).

So how would this work? The plaintiff gets a jury, Prof. Thomas argues, if the improbable inferences you can draw from the complaint amount to a claim:

I propose that in reviewing a complaint upon a motion to dismiss, a court should accept as true all of the facts that the plaintiff has pled and should draw all inferences, whether probable or not, in favor of the plaintiff. If those facts and resulting inferences do not give rise to a cause of action, then the court should dismiss the complaint. If those facts and resulting inferences, on the other hand, give rise to a cause of action, then the complaint should not be dismissed.

The view from down here

I have to say, that's a problem. I recognize that in some ways, Prof. Thomas is only arguing for something trial courts have been doing for years, allowing shaky and abusive lawsuits -- or creative and bold lawsuits, depending on your point of view -- to build steam through expensive discovery and even more expensive jury trial before they finally end.

But I've had to defend abusive lawsuits, and to explain to clients why they have to fly me and their witnesses all over the country and pay thousands of dollars in expert and transcript fees to defend a lawsuit that, from the plaintiff's point of view, is an enjoyable hobby and exhilarating risk investment. From where I sit, it makes sense to find ways to end some lawsuits early.

And while I'm not remotely a constitutional scholar, it doesn't seem to me that we've chosen practicality over constitutional purity if we build some exit ramps into civil procedure. Under any interpretation of the Seventh Amendment, you get a jury only if you have a legal claim. I may be unhappy that Apple's not sharing its iPhone profits with me, but I can't ask a jury to give me the money, because I have no claim to it. As I read Prof. Thomas's two papers, though, if I file a complaint saying I found all the plans for the iPhone in a neighborhood dumpster and Apple stole them, Apple is in for the long haul. They can't get the complaint dismissed (it's only improbable that I found the plans), and they can't get out on summary judgment. They either fund a jury trial (probably in Milwaukee in winter), or they pay me off.

That can't be the right result, so we must have to draw a line somewhere. And if the constitution allows a line to be drawn, then we ought to be able to consider practicality when we draw it.

Box-free thinking

I still like Prof. Thomas's paper, though, and Prof. Dooley's national juries proposal too, for the sheer magnitude of their proposals. This isn't thinking outside the box; it's thinking as if there were no box, never was a box, boxes don't exist. As the jury system endures threats from all sides, we need more of that.

_____________

Notes

1. "Whether the Supreme Court realizes it or not, it is on the road to the creation of a new theory on the interpretation of the Seventh Amendment – one that eliminates the common law analysis, thus disregarding the constitutional limit on courts’ and Congress’s power over the jury."
2. "The Court’s reasoning that Congress and the rule-makers should be able to establish pleading standards, whether heightened or not, which may ultimately extinguish the jury trial right, for causes of action created by Congress appears logical in the first instance. It seems reasonable that if Congress has created a cause of action, Congress and the rule-makers should be able to decide when a court can eliminate that cause of action."
3. "The first clause refers to the preservation of the jury trial with no exception that permits that right from being interfered with, including by Congress and the courts. Instead the common law explicitly governs when there is a jury trial. Under the second clause, the common law also governs when facts can be re-examined."
4. "Although the jury trial right might result from congressional action that establishes a particular cause of action with a legal remedy, once that right exists under the Seventh Amendment, the right is governed by the Amendment. Once a legal remedy exists, Congress and the courts cannot change the power granted to juries in the Amendment. The Amendment requires that the common law governs the jury trial right."

(Photo by D.F. Shapinsky (pingnews) at http://www.flickr.com/photos/pingnews/142498579/; license details there.)