The Slow Death of Civil Trials in Federal Court

Although I may often disagree with the opinions he offers in his always entertaining blog, Hercules and the Umpire, Richard Kopf's observation of the slow death of the federal civil trial is right on the money. In posts from last June and earlier today, Kopf touches on federal rollbacks over the past few decades, including the increased use of summary judgment and directed verdicts, as well as the de facto abandonment of notice pleading in favor of a more stringent fact-based standard. Let me be clear, we are really talking about the growing difficulty plaintiffs are having in getting their cases to trial.

Citing an excellent and informative 2013 article by Prof. Arthur Miller (available here), which notes that the federal rules were first promulgated to create better opportunities for litigants to have their cases decided on their merits, Kopf echoes Miller's concern that judges have expanded the use of procedural defenses and mechanisms so that more and more cases are dismissed (or, in my experience, settled under pressure), and that far fewer cases reach a jury. The linchpin of these mechanisms is the notion that the court can decide whether factual disputes are so obviously one-sided that no reasonable jury could have found for the other side. This permits a judge to not only decide that that facts should be decided in favor of X, but to also decide as to how all sorts of people from the community in question would also evaluate the evidence or weigh the witnesses' credibility.

This brings Kopf to ask, what is a "reasonable jury," and to endorse a call for a re-examination of the standard. This call for clarity was most recently issued by Prof. Suja Thomas, in her article, "Summary Judgment and the Reasonable Jury Standard." Using the awful  2007 Supreme Court decision in Scott v. Harris as a guidepost, Thomas articulates how judicial bias infects the examination into how a "reasonable juror" might see the evidence presented. By law, if a jury could conceivably find for one side or the other, the judge is foreclosed from deciding factual disputes; in actuality, judicial bias may limit a court's ability to determine what an abstract panel might do, which can result in the dismissal of cases where a jury may have returned a plaintiff's verdict.

The Scott case is a useful example of judicial hubris. There, the plaintiff led police officers a high speed chase, which one officer eventually ended by ramming plaintiff's car, causing it to go over an embankment, and leaving plaintiff paralyzed. The plaintiff sued, claiming the officer's actions were excessive force. Much of the chase was captured on video tape. The district court, and subsequently, the appellate court, concluded that whether the force used was excessive was a factual question that only a jury could determine.  The Supreme Court (8 to 1) found differently, concluding that it was so obviously ok for the officer to do what he did, that no reasonable jury could have found otherwise. In his dissent, Justice Stevens points out the obvious: that the fact that the factual question could so divide so many judges was ample evidence that a reasonable jury could be equally divided, meaning that a jury could well come back with a plaintiff's verdict. No matter; the parchment dictating the outlying scope of what a reasonable collection of community members might make of the factual evidence was brought down from Mount Olympus and the case dismissed without further ado.

In the world of police misconduct litigation, attorneys must predict how judges will view the factual disputes in our cases, and guess whether a judge's preference for one side over the other will be so great that the court will ultimately decide that it would be "unreasonable" to see things differently. It is a judge by judge, case by case analysis, of course. But there is no escaping the reality acknowledged by Kopf, Thomas, and Miller, which is that the courts are slowly choking off a plaintiff's ability to get his case before a jury.