I read an interesting essay on judging the other day. The author noted that the image of a federal trial judge sitting dispassionately at trial calling balls and strikes should be supplanted by a new image: the manager, sitting by his or her computer checking out case reports and researching case law on pending motions.
That is not a reassuring image.
Many reasons are given for the vanishing trial. Filings in the District Court have increased, but the number of cases going to trial has decreased. There have been no new rules of procedure that would account for the decline in trial. The increase in filings suggest we are more litigious than ever.
So what hidden causes account for the vanishing trial?
I am aware of at least two: First, the self-conscious managerial ethos of the District Court and second the pernicious growth of legal doctrines designed to keep cases from trial.
The managerial ethos is not evil per se. It springs from a well-meaning, if someone literalistic, commitment to the prompt, speedy and inexpensive resolution of disputes. But the law of unintended consequences kicks in here. When a trial court decides it needs more reports on the status of a case, costs increase. Lawyers meet and confer, report to the Court, draft pleadings, contact clients and engage in hours of collateral chatter that often have the look and feel of litigation but, in fact, contribute but little to a case.
Nothing focuses the mind like the prospect of trial. Talking months, or sometimes years, in advance of trial about what a dispute will look like sometimes has the look and feel of talking about sex: Glasses get all fogged and steamy, hearts throb, commitments get made. But after all the small talk judicial management often produces little more than billable hours.
The burden of this additional time falls hardest on small plaintiff’s firms, the sort of shops in which lawyers struggle to meet payroll, client demands and the requirements of professional norms governing the practice of law. Most plaintiffs can’t afford to pay hourly rates. Add a few hours small talk and the foreplay associated with judicious interruptus to the litigation of a federal case, and that is simply work for which most plaintiff’s lawyers go uncompensated. Not so on the defense side of the ledger, where the hourly billing machine ticks, ticks, ticks into infinity.
Multiply the need for judicial pillow talk times ten or so files in a small firm and a week’s time disappears into territory even Einstein could only imagine.
But the real bugbear responsible for the vanishing trial, at least in the context of official misconduct claims, is the doctrine of qualified immunity. This judicial get out of jail card is a recent phenomenon. Mentioned nowhere is the Constitution, this judicial doctrine gives the Court power to dismiss a case in all but the most egregious claims of misconduct. Defendants now file motions for summary judgment routinely. It is almost malpractice not to file them when the changes for success are so high.
Once again, defense counsel sets her clock a-ticking and churns out reams of paper. Thousands of dollars later, a motion is filed in the court. The plaintiff’s counsel, the same soul working most likely on a contingency fee or working off a small retainer, must respond. If the plaintiff survives, the case advances to trial. Many cases die at the summary judgment phase with a plaintiff never having seen the inside of a courtroom or the whites of a judge’s or juror’s eye.
I won’t go so far as to say that summary judgment violates the Seventh Amendment, although law review articles advancing that claim make for good reading. But it is clear that the new managerial court enervates our commitment to trial by jury.
One reason the founders cut there ties from England was that King George had reduced the colonists’ right to trial by jury. No distant king does so today. Instead a judiciary empowered by doctrine and an agenda that values efficiency above participation churns along like a great white shark, eyes rolled back and a thin smile on bloody lips: "Trial? Trial?" belches the beast, as it slaps its tail on troubled waters and vanishes from public view.
Reprinted courtesy of the Connecticut Law Tribune.