Page 84 - ACTL Journal Win24

In 1986 the Supreme Court decided a trilogy of cas- es saying that summary judgment should no longer be considered “a disfavored procedural shortcut, but should be used when appropriate to secure the just, speedy, and less expensive way to resolve a case.” Feder- al judges got the message. And so today, approximately nineteen percent of civil cases in federal courts are re- solved by summary judgment.
Judge Friedman had a lot to say on both topics, more than we can comfortably reproduce in the Journal’s usual, some- what breezy format. We have had to cut his 5000+ original words by half, and we no doubt have lost a lot in the pro- cess, but we hope we have left some substance for you in the following abridged version of his remarks:
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In a 2017 article that appeared in Judicature magazine by Jeffrey Q. Smith and Grant R. MacQueen, the authors pointed out that “while trial remains a theoretical possibil- ity in every case, the reality is quite different.” They identi- fied several reasons why.
With the diminishing numbers of both civil and criminal trials, we are at risk of losing both a genuine trial bar and a genuine trial bench. As Judge Sidney Thomas of the Ninth Circuit recently noted, many attorneys appear to be losing their trial skills.
And with fewer trials, there are fewer judges who have sig- nificant trial experience. The average federal district court judge in the United States today tries only seventeen cases a year, five civil and twelve criminal. So what can be done to make sure that those appointed to the bench really un- derstand how to preside? One suggestion I have for leaders of the Bar like you is to urge your Senators to recommend lawyers with significant trial experience.
I bemoan the lack of trials not only because the art of tri- al advocacy is worth preserving for its own sake, but also because there are institutional concerns as well; a trans- parent and public court system requires effective advocacy by skilled and competent professionals. Quality advocacy promotes the legitimacy and fairness of the courts, the en- tire justice system, and the real-life meaning of the rule of law. As U.S. District Court Judge David Campbell said recently, the decline in trials is the “single biggest loss,” not only to the system, “but also a great loss for society.” And as my friend John Keker has put it: “Trials let light into the process, helping keep prosecutors honest, cops more honest, judges in check.”
Now, pivoting to threats to judicial independence and the rule of law, let me start with the Constitution itself. Sepa- ration of powers was one of the unique contributions from those who wrote our Constitution. Unlike other countries, the Founders created three separate and co-equal branches – the Executive, the Legislative, and the Judicial. Because the Founders were guarding against an overreaching Legislative branch and wanted to ensure that the rights of the minority were protected against a tyranny of the majority, they made the Judicial branch independent. To assure that, the Fram- ers provided that federal judges would be appointed for life and that Congress could not reduce their compensation.
The Supreme Court’s summary judgment cases were fol- lowed by two decisions – Twombly in 2007 and Iqbal in 2009 – that seemed to raise the pleading standards need- ed to state a viable civil claim. Dismissal of cases now was encouraged to reduce the unnecessary expenditure of time and money by the parties and the courts.
Discovery has become more expansive and expensive, par- ticularly after the advent of electronic discovery, email, so- cial media, and the like.
These three developments – encouraged summary judg- ment, heightened pleading standards, and more expansive and expensive discovery – have dramatically reduced the number of civil jury trials in the federal courts. In 2019 juries disposed of just 0.53 percent of filed federal civil dis- putes. And in the state courts, civil jury trials are even rarer.
Likewise criminal cases. Following the passage of the Fed- eral Sentencing Guidelines, the percentage of criminal cases resolved by trial in the federal courts significantly de- clined. In the late 1960’s and early 1970’s, nearly 20% of all criminal defendants charged in federal court exercised their constitutional right to a trial. Today trials occur in only about 2% of federal criminal cases. The most dra- matic drop in the number of trials occurred almost im- mediately after the Sentencing Guidelines and mandatory minimum sentences took hold.
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