The Disappeared Trial

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Bad Judg(e)ment: A Three-Part Series


Part Three: The “Disappeared” Trial


Published in the Maryland Daily Record September 24, 2004


          The last couple of times, I have been writing about individual traits in judges that can make them hard for us lawyers and our clients to live and work with.  Now I want to shift focus to an institutional trend in our courts that makes for bad judging, almost irrespective of anyone’s personality, although judges collectively have historically been the primary special interest agitating for it.  This is the trend to eliminate trials, to “disappear” them (if I may employ a piquant change from intransitive to transitive verb brought to us courtesy of various dirty wars in Latin America).


          Trials have been going away.  This is not just my perception.  The alarm on this has been sounded by the American Bar Association, which initiated a project on the Vanishing Trial, including a public form in December 2003, and continuing research directed by Marc Galanter, a professor at the University of Wisconsin and the London School of Economics.  Professor Galanter’s paper on the Vanishing Trial, jammed with interesting facts and figures, is set to appear in the Journal of Empirical Legal Studies in November.[1] What Galanter’s statistics tell us is that total trials are dropping, even as filings increase.


          The causes seem to be many and varied, including such things as the impact of sentencing guidelines that penalize criminal defendants for insisting on trying cases, the role of class actions (almost always headed for non-trial disposition), and the rise of mediation and arbitration.  The history of how this disappearance came about at the federal level, largely because of the organized judiciary’s overall agitation for case management and limitation on its own size and jurisdiction, is chronicled in a paper by Yale Law Professor Judith Resnik in the February 2000 issue of Harvard Law Review, and in another paper by Resnik also coming up in the November Journal of Empirical Legal Studies.


            On the civil front, the trend has given rise an interesting pair of developments, one characteristic of state courts, one of federal courts, which have facilitated much of the disappearing.  And bad judging fits right in.  Let me describe them and then illustrate with a couple of war stories.


          In state courts, where elected judges tend to predominate, the popular and populist course is to never permit defendants use summary judgment to escape trial, even in frivolous cases.  Viewed with a strong enough determination (a determination I am convinced is aroused in many a judicial mind by the desire to pander to an electorate), any set of facts will present a jury question.  The unspoken rationale, I strongly suspect, is that corporate defendants (backed by substantial treasuries and by insurers with even more substantial treasuries) will go to great lengths, even settling frivolous cases, in order to avoid the uncertainty of facing juries.   On the other hand, a plaintiff paid judicially-enabled extortion may well be a grateful voter.  And that plaintiff’s lawyer will probably be a contributor at campaign time.


          Standing by itself, the growing unavailability of summary judgment might tend to increase, not decrease, the number of trials, but it is coupled with another development that leads the other way, what I call “mediation hell.”  I recently experienced a fine example of this in an out-of-state courthouse that shall remain nameless.  This court has a voluntary mediation program in addition to a formally-required “settlement court.”  My defendant client and I agreed that: a) the case was frivolous, or close to it; b) we could nevertheless offer nuisance value to make the claim go away; and c) voluntary mediation was the place to do this.  Arriving at the courthouse, we found that the volunteer mediator had read neither side’s mandated paper submissions, that he had no intention of doing so now, that he wasn’t particularly interested in my client’s legal defenses, and would only place a suggested settlement value on the case based on a sense of the equities uninformed by any view of the defenses.  He placed a settlement range on the case of three to five times what we were offering.  Needless to say, there was no settlement that day.  Thereafter, our well-founded summary judgment motion was denied without a word of explanation.


          Then later it came time for the more official “settlement court.”  The settlement judge told us firmly that “settlements happen here,” and that she was not inclined to second-guess the value placed on the case by the volunteer mediator who had not read the papers, and that like that mediator, she had no interest in – literally told us she did not even want to hear about – our legal defenses.  When we did not settle after an hour of her browbeating, we were told to come back in a week, because she was not finished with us.  Coming back in a week, she asked for the first time about our insurance, and when we told her that we had coverage, albeit coverage that would barely and only arguably kick in even if everything went dreadfully awry, she announced we had to come back with an adjustor the same day we were picking a jury, so she could “read him his rights.”  We dragged an attorney for the insurer in with us – from a third city – on the appointed day. And now the settlement judge who had been so insistent we bring him now told us that she was too busy to talk to him, and that we should just go and pick the jury in front of another judge.  Having called her bluff and having gone to the expense and inconvenience of turning up with an insurance company representative, we were finally allowed to go to trial without further hindrance.  I am convinced she had never intended to have any real dealings with the insurance lawyer; she just wanted to make avoidance of settlement that much more onerous for us: a final shakedown.


          The story had a happy ending, if you can call anything involving trying a frivolous case a happy ending.  Unlike the settlement judge, the trial judge actually cared about the law and our defenses, and gave the jury instructions which apportioned appropriate weight to those defenses.  They were out less than half an hour before returning a verdict on all counts for my client.  But my client had had to undergo the cost of trial, depositions in three states, and considerable business disruption to get there.  And I’m sure the settlement judge felt we had not played our proper role by insisting on going to trial; in her mind, it was our responsibility to keep turning up for sessions of mediation hell until we caved.


          Indeed, that is all too frequently the precise judicial mindset.  In the Harvard Law Review piece I mentioned, Professor Resnik writes of a federal judge telling a group of lawyers in Los Angeles that every trial was a failure by the lawyers involved.  Every trial?  What planet did this judge inhabit?  Such a mindset is an absolute license for bad judging.  Mediation, which started out as an aid to settlement and thus for the benefit of all parties, has become a club to prevent the party with the stronger case from obtaining any resolution other than settlement on unreasonable terms.  The party is denied summary judgment and, to the extent possible, trial.  The party is clapped into conference rooms with judges and surrogates whose priority is settlement, not justice, and who have the power to apply severe pressure.  Things like what happened to me and my client in that nameless courthouse are commonplace.


          The federal courts, by contrast, are armed with the Celotex trilogy, three 1986 cases in which the Supreme Court assured trial judges summary judgment was truly ok.  The federal bench, filled with lifetime-appointed judges who have no incentive like their state brethren and sisters to please the masses, took to Celotex with alacrity as a fine way of clearing their decks. Here the trick has been not to acknowledge the existence of disputes of fact even when they are clear cut. 


          I had a typical case a few years ago with a federal judge who shall also be nameless.  I was representing a government employee trying to overturn a demotion to which my client had “voluntarily” agreed.  According to my client’s complaint and affidavit, this “voluntary” agreement came after his boss (don’t ask how this came about) had credibly threatened to put down a dog close to the employee’s heart unless the client signed a consent to be demoted.  Our theory was that sign-or-I-shoot-the-dog was duress invalidating the demotion.  The government pointed out in its summary judgment motion that the document agreeing to the demotion recited on its face that the demotion was voluntary.  The court issued a ruling on the earliest possible date, specifically finding that (no matter what the actual duress involved in procuring the signature), my client’s signing off on a document which recited that there was no duress involved in procuring the signature precluded him now from contending that there had been duress involved in procuring the signature.  To me it was obvious that an issue waiver procured by duress is of no greater effect than a demotion procured by duress, and that an affidavit declaring there was duress should have raised a triable issue of fact as to whether the duress occurred regarding the waiver.  Right?  Well, not before this judge, anyway.  Celotex had reinforced his bad judicial instincts. And it happens a lot.  Ask any plaintiffs’ employment lawyer in this state how hard it is to create a triable issue of fact in a federal court; he or she will tell you. 


          The surprising thing, then, about these apparently contrary courses of action, wilful denial of merited summary judgment on the one hand and trigger-happy unmerited granting of summary judgment on the other, is that they both end up clearing the dockets without trial, one as a prelude to the extortion of settlement, the other by nonsuit.  Either way, the benefits of trial are slipping away.


          The benefits of trials are many, including the creation of a public record of the facts and an authoritative determination of what occurred and its legal significance.  Moreover, the very ritual of trial, worked out over hundreds of years, is commonly recognized as more authoritative for making that determination than arbitrations or administrative hearings, mediations or settlements.  Novelist and Fordham Law Professor Thane Rosenbaum (The Myth of Moral Justice, 2004) maintains that the function of trial is also humane: that it enables participants to tell their stories and be heard, which is both therapeutic and cathartic.  While I part company with Rosenbaum on his apparent objective of making each trial a mini-truth and reconciliation commission (a la South Africa), there is no denying that trials can sometimes be therapeutic and cathartic for all participants, irrespective of the outcome.


          Whether or not one agrees on this or that benefit of trial, trial remains, for many good reasons, the default method for the resolution of legal disputes in our country.  It is a right to which litigants are constitutionally entitled if there are not grounds for dismissal or summary judgment.  Yes, trial is expensive, though less so if the parties can dispense with unnecessary preliminaries like the infliction of unwanted mediation.  Yes, the system cannot possibly tolerate trial in the majority of cases.  But trials are disappearing, not swamping us.  Trying to put trials further out of reach is solving a nonexistent problem.  And rather than trying to prevent trials through devices like mediation hell and trigger-happy summary judgment, our judges should be trying to make trials happen quickly and smoothly.  If litigation were a pinball game, judges using devices like these would light up the “TILT” sign.


          Judges should not be about making trials not happen.  Maybe the one who made us drag in the insurance adjustor for a fourth round of mediation and the one who granted summary judgment because (if we were right on our facts) duress had extorted a confirmation of the falsehood that there was no duress are worse than most.  But the entire judicial branch has its fingerprints on the efforts to kill trials, an effort of whose success these two instances were tiny examples, and this effort is wrong.

          Let me end with a couple of positive notes. 


          I said in the first article of this series that, so far as I could see, the only potential effective brake on bad judicial quality not rising to the level of senility or outrageous misbehavior was the press – though presently the press has failed to shoulder this burden.  One reader called to my attention the reported practice of a Circuit Court judge in Baltimore County who periodically sends out questionnaires to parties who appear before him, in order to get their evaluations.  This is a truly great idea – although one can surmise that a judge who does such a thing of his own initiative is probably less in need of constructive criticism than most.  But what if we were to standardize the process and mandate it for all judges, and post the results on the Internet, say on the official Maryland Judiciary website?  (While of course giving the respondents the same kind of defamation immunity accorded statements made in court.)  This would be a low-cost way of pinpointing problems, a way that disciplinary authorities and the press could take and run with.  Not only that, but it would be a marvelous way to establish who the good ones are. 


          And yes, there certainly are lots and lots of good ones.  In the last couple of months, I had the great pleasure of trying two week-long cases before outstanding trial judges (one of whom presided over the very case in which the settlement judge had first made us bring in the insurance lawyer).  Each trial judge applied the law, each was courteous to all parties, each kept control of the proceedings in the courtroom, each was open-minded until he made up his mind, and then each was decisive.  It was strange to be in the midst of writing essays critical of bad judges at the very moment I was observing the judicial craft so well practiced.  Strange, but useful in forcing me to maintain perspective.


          Using that perspective, let me conclude in this fashion: We have a problem with bad judging not because judges are on average so bad.  On the other hand, it is not simply a matter of rare bad apples.  It is a frequent problem, and one exacerbated by the absence of controls and the presence of trends like the disappearing of trials.


          Failing any miraculous fixes, we in the legal profession would do well to be as honest as we can with ourselves and each other.  As I have said before, we know who the bad ones are.  How we handle them is of course conditioned by our sense of self-preservation and our instinctual courtesy, both of which may prevent us at key moments from treating things as they are.  But it would be best if we did not buy tickets to the bad ones’ fundraisers, if we did not cravenly shake their hands approvingly at professional functions, and if, at their investitures as they moved up the judicial pecking order or retire, we did not laud them publicly for virtues we know perfectly well they do not possess.  We must accord them respect in the courtroom, but we do not need to treat them elsewhere as if we didn’t observe how they behave towards us there.  They thrive on our profession’s cowardice and silence, which, when it comes to our frequent rituals of public respect, lumps the truly good judges in with the bad.  If we want to make good judging something all judges aspire to, the good ones should receive loftier recognition than the bad.  That will help keep the good ones good and help give the bad ones some aspirations.


          No matter what we do, of course, we know it won’t solve everything.  Nothing ever solves everything.  We haven’t come very far since Luke 18:2, and probably won’t get much further in a hurry.  I quote again:  “There was a judge in a certain town who neither feared God nor respected any human being. . .”


[1] This article was published, but is now secured behind a pay wall.  Click on the link if you wish to buy it.


Copyright (c) Jack L. B. Gohn

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