The vanishing jury trial is perhaps one of the most important issues facing the civil justice system today.  Civil trials have declined in federal courts from 12% in 1984 to less than 1% in 2010.  Statistics from state courts, though more difficult to obtain, generally show the same trends.  The issue has been widely studied, and while the fact of the vanishing trial is clear, the reasons for the decline are less obvious.  Several theories have been advanced, ranging from a dramatic rise in case filings and underfunded court systems to the ever increasing cost of litigation and the success of alternative dispute resolution.  

The Supreme Court heard argument on November 7 in Zivotofsky v. Clinton, No. 10-699, a case involving the “political question” doctrine and the scope of the President’s authority over the conduct of foreign relations.

In 2002, as part of the Foreign Relations Authorization Act, Congress enacted Section 214, entitled “United States Policy with Respect to Jerusalem as the Cpaital of Israel.”  Subsection 214(d) provides that, for purposes of issuing a passport to a United States citizen born in Jerusalem, the Secretary of State, upon request, must record the citizen’s place of birth as “Israel.”  In a statement issued at the time he signed the bill, the President took the position that Section 214 is merely advisory because, if it is instead directory, Section 214 would impermissibly infringe upon the President’s constitutional authority to formulate the United States’ position on the recognition to be given to foreign states.

Menachem Zivotofsky, who was born in Jerusalem in 2002 to U. S. citizens, applied through his mother for a passport, requesting that the place of birth be listed as “Jerusalem, Israel.”  The State Department responded that its policy precluded listing “Israel” as Zivotofsky’s birthplace, and issued a passport listing the place of birth as “Jerusalem.”  Menachem, through his parents, then filed an action for declaratory and injunctive relief, seeking an order compelling the State Department to comply with Section 214(d).  Both the district court and the Court of Appeals held that the issues presented by Zivotofsky’s action raised non-justiciable political questions. The Supreme Court granted certiorari to consider both the political question and whether Section 214 is an unconstitutional infringement of the President’s authority.

During oral argument, Zivotofsky’s attempt to defend Section 214 met with skepticism.  Zivotofsky took the position that Congress has authority to legislate in the area of foreign policy, and that Congress acted appropriately in concluding the designation on a passport of “Jerusalem, Israel” as an American citizen’s birthplace would do no harm to U. S. foreign policy.

However, Chief Justice Roberts, and Associate Justices Kennedy, Ginsburg, Scalia, Sotomayor and Kagan, all expressed doubt that Congress could legislate in this area without encroaching upon the President’s authority to conduct the foreign relations of the United States.  As Justice Sotomayor put it:

“[W]hat entitles Congress to trench on a presidential power that has been exercised virtually since the beginning of the country?”

The Court was more receptive to the Solicitor General’s argument that the President’s authority over foreign affairs, including the extent to which foreign governments are recognized, is exclusive, and that Section 214 necessarily infringes upon that authority.  Justice Breyer suggested that the Court might want to abstain from entering this controversy between the legislative and executive branches by upholding the Court of Appeals’ conclusion that this case involves a non-justiciable political question. However, Justices Kennedy and Sotomayor suggested that the Court should reach the merits of the controversy in order th eliminate uncertainty concerning the allocation of responsibility for the conduct of foreign affairs.

A decision in this case is expected by the end of the current Supreme Court term.

David Axelrad is an attorney with Horvitz & Levy in Los Angeles.  Contact David here.

On June 20, the U.S. Supreme Court issued its much-anticipated Wal-Mart Stores, Inc. v. Dukes decision in which the Court held that the nationwide class certification approved by the lower courts was not consistent with Federal Rule of Civil Procedure 23(a) governing class actions. The class of plaintiffs consisted of some 1.5 million women who worked at Wal-Mart throughout the U.S. and allegedly suffered discriminatory pay and promotion practices at any point during or after December 1998.  Writing for the Court, Justice Antonin Scalia concluded that the millions of plaintiffs and their claims did not have enough in common: “Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why I was disfavored.”

As was reported this week, plaintiffs’ counsel have now move the fight to the states, amending their original complaint filed in federal district in California to limit the class to female Wal-Mart employees in California and filing a new action on behalf of Texas Sam’s Club and Wal-Mart female employees.  It is anticipated that these represent the first of many additional class-action lawsuits to be filed against Wal-Mart on the state or regional level.

At first blush, these state and regional actions appear to suffer from some of the same defects as the action rejected by the U.S. Supreme Court.  Among other things, it remains undisputed that Wal-Mart store supervisors retained discretion over promotion and pay policies, making challenges on anything above the store-level problematic.  In addition, the proposed classes appear to include female associates as well as the female supervisors who may have supervised them and made the very promotion and pay decisions they deem objectionable. 

What’s the likely outcome of the state/regional Wal-Mart class actions?  If you were representing Wal-Mart, what would you argue?  What are the chances one of these “Daughter of Dukes” cases ends up back before the nation’s high court?

On January 1, 2011 California will embark on a grand adventure when AB 2284 goes into effect.  This legislation, which was enacted into law in September by the California Legislature, establishes Expedited Jury Trials ("EJTs"). While summary trials are not new, California's act seems to set it apart from others; the law applies to civil litigation where the parties (including insurance carriers) have signed a consent agenda that the EJT procedures apply.  A recitation of the details of the bill are not part of this posting, but some of the provisions of interest to defense lawyers include: 1) a jury size of eight or less with no alternates, 2) a maximum of three preemptory challenges for each side, and perhaps the most interesting aspect, 3) a strict limit of three hours for each side to present its case.  Verdicts are binding under the new law, and EJT procedures further require each side to waive its right to appeal as well as the right to file post-trail pleadings except in certain circumstances.  One caveat: there is a hearing today, October 29th, with the California Judicial Council, to establish uniform procedures for EJTs.  The provisions of AB 2284 do not change the California Rules of Evidence; discovery is permissible, and the jury has an unlimited time to deliberate.  A three quarters agreement by the jury will result in a verdict. The procedural details of the law are found at CCP §§ 630.01-630.11.

California's judicial system has been among the states hit hardest by budget cuts, and perhaps the legislature finally realized that court holidays, court staff reductions and unfilled judicial vacancies equated to a lack of access to the civil justice system for rich and poor alike. One thing is certain if EJTs gain popular acceptance: the vanishing civil jury trial should begin to reappear in modified form.

Connect with John Kouris, DRI’s Executive Director, on LinkedIn.

This is a great example of why Court's dockets are so backed up.  Smallwood v. NCSoft Corp., No 1:09-cv-00497 (D. HI, Aug. 4, 2010) Plaintiff sued an online game manufacturer on the grounds that he suffered emotional distress because he is now blocked from playing the game (after spending over 20,000 hours at it over the course of a few years).  The plaintiff appeared pro se (despite actually having a lawyer assist him) and twice had his complaint dismissed for failure to state a claim on jurisdictional grounds because he didn't adequately plead jurisdiction and the elements of fraud.  The Court (U.S. District Court, HI) has now issued its third opinion and only now dismissed some of the claims with prejudice.  And this was no small opinion-- in it, the Court discussed the pleading standards for fraud, completed a conflict of law analysis between Texas and Hawaii law, analyzed the extent to which claims could be waived by contract, and then proceeded to look at the specific allegations the plaintiff made to see if they could reach the gross negligence standard needed to get around the limitations in the user agreement and therefore meet the jurisdictional requirement.  The Court also included a discussion of the leniency afforded pro se litigants and then why, under the facts of this case, it was no longer affording the plaintiff that leniency.
 
Now the other claims (defamation/libel/slander, negligence, gross negligence, and negligent infliction of emotional distress) will proceed yet again.  Interestingly, he really isn't claiming that the manufacturer should have warned against the addictive nature of the game, it seems more that he is arguing that the Company should have warned that he might not have access to the game forever.  All his damages stem from his alleged "withdrawal" after no longer being able to play.  I guess that means it is time for yet another warning in the user agreement.
 
Here is a link to the opinion.  
 
And here is a link to the Above the Law commentary on the frivolous nature of Mr. Smallwood's claim. 

I recently read an article that discussed a growing trend in jury trials:  allowing jurors to ask questions of witnesses.  The article indicates that allowing jurors to ask questions of witnesses while on the stand is a favored trend because it helps jurors feel more like they are a part of the process and likely reduces deliberation time because jurors spend less time in deliberations speculating about unanswered questions.

The article set out a simple process.  Once counsel concludes their examination, the jury is asked by the judge if they have any questions.  Any questions are written down by the jurors and passed to the Court Deputy who hands them to the Judge.  The Judge determines if it is a question that at least on its face appears proper.  The Judge then asks Counsel if they have any objection.  If there is no objection the question is asked.  If there is an objection the Court rules the objection and makes the call whether to ask the question.

Well as fate would have it, I lived the experience of allowing jurors to ask questions in a recent wrongful death trial.  The process followed was very similar to that outlined in the article with the exception the Court at times tried to clarify the question and did allow follow up by Counsel. 

During four days of evidence, there were about a dozen questions. Only two were rejected by the Court as improper.  In the case of an improper question the Court simply did not ask the question without any explanation as to why the question was not asked.  There were no questions asked that were objected to by one side but not the other.

The overall experience was positive especially since the jury returned a defense verdict, but I have to say I am not sure any time was saved during deliberations since it still took the jury six hours to return their verdict.  In sitting and listening to the Court ask the questions posed by the jury it dawned on me how much the Court could, by how it asks the question, rephrases the question or by asking its own follow up question, influence a jury.

For future reference if you are comfortable with your judge I see no reason to oppose allowing the jury to ask questions of witnesses especially since it will likely happen anyway.  I would however, make sure  the process of how the questions will be asked is clear including if there is to be any clarification that Counsel have input in the clarification of the question and that any follow up questions come only from counsel.  The only other suggestion I might offer is that the jury be advised, when they are instructed they can ask questions, that if a question they pose is not asked it is because under the rules of evidence the question cannot be answered or some other general reason why the question was not asked.

If anyone would like to share their experience with jury questions please do, I would like to know how others feel about this apparent growing trend in jury trials.

I'm sorry, but I don't get it. Once an elected official has lost the confidence of the people he serves, morality, ethics and the public trust require an introspective analysis into whether continued service is desirable or appropriate. The people of Illinois deserve a Governor who not only avoids the appearance of impropriety but actively tries to avoid embarrassing himself and his so-called constituency.

Forget the impeachment trial in Springfield for a moment. It is nothing more than a constitutionally permissible recall vote. It is not a criminal trial and the rules pertaining to civil liberties and the rights of the criminally accused just do not apply. Is there a basis to remove this Governor from office? You bet! Has the Governor acted responsibly and appropriate in the face of the charges brought upon the impeachment? No way!

Whether Mr. Blagojevich is criminally guilty of any of the charges in the criminal complaint or in the soon-to-be-filed indictment is for a court of law with all the necessary protections applied including the right to jury trial, due process, the right to confront your accusers, and guilt beyond a reasonable doubt. What is at issue this week has been a reprehensible media circus filed with sound bites and attempts to invoke such honored men as Gandhi, Mandela and King.

When others in elected positions have faced personal or professional embarrassment which impeded their ability to continue to serve in office, the high road was usually selected which involved a mea culpa and a resignation. These matters involve the court of public opinion and not a court of law. There are no issues of due process at play here. Let's stop the charade and do what is right and fair for the people of Illinois, Mr. Governor. Tender your resignation and allow us to move forward from this pitiful chapter.

Charles H. Cole
Schuyler Roche, Chicago IL

As I write, the spectacle of the impeachment trial of Illinois Governor Rod Blagojevich has just completed day two.  Earlier in the day, as in the previous days, the popular and not so popular press decried this man as a "blow hard," "publicity hound," "crook," "idiot," and all the rest, and will likely continue to do so in the days ahead.  The media accounts profess shock and amazement that this man would take to the public airways to make his case rather than defend himself in the proceedings in Springfield, Illinois, birthplace of the political careers of Presidents Lincoln and Obama.  Sadly, it makes sense to us to try this man in the press, pronounce his guilt, cast him aside and move on to the Oscars, the ups and downs of Brittany's career or the public interest story of the day.  After all, the press has received the evidence, weighed it, and presented it, and we, the jurors of right and wrong, the public at large, can decide the case and punish this man with our scorn and contempt and move on to our next tasks.

This spectacle, and its reporting, erodes the public's trust in judicial or quasi-judicial process.  Jury trials are a far cry from the impeachment "trial" taking place in Illinois.  In American courts, judges decide what evidence the jury will hear.  Both sides have subpoena power and can seek enforcement by the court.  Witnesses can be confronted in open court and cross-examined to determine their truthfulness and veracity.  The jury's role is to sit in judgment of the evidence it hears after being instructed in the law by the court.  The jury is admonished not to be influenced by outside events or to read press reports of the proceedings.  The entire process is fair and just.  And in 99 percent  of the cases tried before a jury in this country, a just result is attained.  Wrongs are righted by appellate courts, if appropriate.

Not so the rules governing the Illinois Senate impeaching Governor Blagojevich.  The Senate, not the presiding Illinois chief justice, decides by vote which witnesses the governor can call, which can be subpoenaed, and what evidence can be heard.  Oh yes, he can move the Senate to admit certain evidence, but the Senate "rules" on the motion.  The right to confront witnesses and cross-examine them is not preserved.  The rules of the courts of the state of Illinois and the United States are expressly disregarded.  You are encouraged to review the rules for yourself.  The link is: http://www.ilga.gov/senate/committees/Documents/Proposed%20Senate%20Impeachment%20Rules.pdf.

Ask yourself, would you like to be tried in this court before this jury using rules expressly created for your prosecution by politicians whose heart ticks to the beat of popular opinion?

The entire Blagojevich fiasco is sad.  The saddest aspects are that our faith in what is just in our country is eroded by proceedings such as the Senate impeachment trial in Illinois and the way the press has covered it.  We must measure what is just by the way we treat the unpopular, the weak, and the unfortunate.  The Illinois governor is not weak and is unlikely unfortunate.  He is, no doubt, extremely unpopular.  The treatment of him erodes our confidence in what is fair and just to the detriment of all.

Mike Weston
Lederer Weston Craig, P.L.C., Cedar Rapids, Iowa