Federal cases take about a year to resolve on average — but don’t read too much into that average

The Juris Lab has a nice, approachable statistical overview of federal civil case disposition over the past twenty years. It notes that the “average” case takes about 344 days from filing to termination, although that number varies widely depending on case type, jurisdiction, and nature of disposition. (Cases ending in a trial verdict take another year to resolve on average.)

The oveview does not attempt to account for all the variation in disposition time, and does not even mention obvious factors like judicial vacancies, complex procedural settings like MDLs, the influence of ADR on filings, CJRA-style reporting pressure, or settlement pressure. But it is still very useful.

I have only recently come across The Juris Lab, which aims to wed legal issues with big data. It seems like a promising site, and worth checking out on a regular basis.

Five Biden appointees advance to confirmation votes

Five of President Biden’s judicial nominees advanced out of the Senate Judiciary Committee yesterday. Two court of appeals nominees, including D.C. Circuit nominee Ketanji Brown Jackson, passed on narrow majorities. Three dsitrict court nominees sailed through with large majorities.

Judge Jackson won the support of two Republican Senators, Lindsay Graham and John Cornyn, and passed to the full Senate with a final committee vote of 13-9. That someone as accomplished as Jackson received nine “no” votes is a clear sign of our political dysfunction. Senator Chuck Grassley, who voted against Jackson, explained that “unless a circuit court nominee can show me that he or she is affirmatively committed to the constitution as affirmatively understood, I don’t think that he or she should be confirmed.”

One point to Senator Grassley for honesty, but a three-point deduction for damaging partisanship. Yes, the D.C. Circuit has become the most ideological of the circuit courts, and yes, there is reason for the GOP to be concerned about the Democrats’ transparent effort to pack that court and then funnel all federal elections challenges through it. But elections have consequences, and no one should expect that a Biden nominee will be a committed originalist. Grassley’s bright-line rule for appellate nominees places him squarely in the camp of noted Third Branch emasculators Kamala Harris and Mazie Hirono.

Senate Democrats continue obsession over religious beliefs of federal judicial nominees

In recent years, Democrats on the Senate Judiciary Committee have generated a long list of wildly inappropriate questions and comments regarding the religious backgrounds of federal judicial candidates. Sen. Mazie Hirono (D-HI) has led the charge, backed up by Sen. Dianne Feinstein (D-CA) and others.

Now they’re back at it. Last week Senator Dick Durbin (D-IL) asked New Jersey district court nominee Zahid Quraishi, “What do you know about Sharia law?”

Quraishi, currently a U.S. Magistrate Judge with outstanding legal credentials, responded that he knew nothing about Sharia. (Quraishi was and raised in New Jersey, the son of Pakistani Muslim immigrants.)  And there is no reason to believe that he would, other than Senate Democrats’ obsession with stereotyping individual Americans based on their ethnic backgrounds.

It’s important to understand exactly how bad a question this was. First, it has nothing at all to do with Quraishi’s ability to perform the job for which he has been nominated. Whether Quaraishi has never heard of Sharia, or whether he is a renowned Sharia scholar, should make no difference in his ability to oversee trials and apply U.S. law as a federal district judge. Second, the question itself put Quraishi in an impossible situation: whatever answer he gave would be bound to erode support from some segment of the population. (And indeed, some Muslim groups are apparently now rethinking their support of his nomination simply because of his honest answer.)

This was an entirely unforced error by Durbin, who half-apologized for the question in advance but still showed the utter lack of intelligence to ask it.

As best I can tell, Zahid Quraishi is a classic American success story. His nomination should rise or fall on his qualifications, not the political or cultural identity that others wish upon him.

Post-COVID, an expanded toolbox for the courts

What will court proceedings look like once the coronivirus pandemic has run its course and society reopens in earnest? Already, courthouses are reopening for jury trials and hearings — a critical step for transparency and due proces. But as Judge Jack Zouhary explains at the IAALS Blog, videoconferencing is not going away. Rather, the courts will likely use videoconferencing for appropriate proceedings — everything from status conferences to settlement discussions.

The expectation of continued videoconferencing is welcome, but it is just the beginning of a larger transformation. The ongoing ability to access the courts through Zoom raises important questions about recording hearings, public transparency, the use of video for purposes of judicial performance evaluation and appeal, and so on. Put differently, new challenges are on the horizon. In the meantime, we are witnessing the true birth of America’s twenty-first century court system.

Minnesota’s federal court will continue with Zoom trials even after COVID

In an interview with Law360, Chief Judge John Tunheim of the U.S. District Court for the District of Minnesota said that his district will continue with civil trials over Zoom even after the coronavirus pandemic no longer makes them necessary. A snippet of the interview:

Our plan at this point is to resume jury trials, and in-person hearings to the extent necessary, on May 3. All of our staff will be vaccinated and beyond the two-week period following the second shot, so we think that by May 1 we should be in pretty good shape for jurors coming in.

I do plan to continue, and urge our other judges to continue, to do as many hearings on Zoom as possible. It’s worked really, really well, and we’re still not in a position where we want a lot of people coming into the courthouse.

I think using Zoom is a very effective tool for bench trials. For jury trials it’s a little more complicated, as we know. But we have a backlog of civil cases that we’re probably not going to get to right away because of the criminal case backlog. We are, for the time being, using only two courtrooms, one in Minneapolis, one in St. Paul, both with substantial amounts of plexiglass. Only using two courtrooms makes it hard to catch up.

I expect to see much more along these lines in the coming weeks and months.

Biden tips his hand on the next Supreme Court nominee

Keep an eye on Judge Ketanji Brown Jackson, the newest nominee to the D.C. Circuit.

Ketanji Brown JacksonPresident Biden has issued his first list of intended judicial nominees, mostly to federal district courts across the country. They are a highly accomplished and — as best I can tell — highly qualified group of nominees. 

Perusing the list, I’m going to call my shot now and predict that whenever an opening on the Supreme Court occurs, the  President’s first nominee will be Judge Ketanji Brown Jackson. Judge Jackson is already a well-respected federal district judge, and is set to be nominated to the U.S. Court of Appeals for the D.C. Circuit. She therefore follows the path of other budding judicial stars who were elevated to the circuit courts before an eventual Supreme Court nomination by the same president. (Justice Amy Coney Barrett is the most recent example.) Judge Jackson also checks all the boxes: she is brilliant, accomplished, hard-working, well-respected, relatively young, and (important for Biden’s camp, at least) a Black woman. She is also kind, professional, and gracious — at least that is the clear memory I have from the time we overlapped as litigation associates at Goodwin Procter nearly twenty years ago.

Predictably, much of the mainstream media is focusing on the race and gender of the nominees, rather than their exceptional talent and qualifications. This does a remarkable disservice both to the nominees and the public. It reduces a lifetime of individual hard work, achievement — and yes, most assuredly some luck — to a crass demographic calculation. And it communicates that their skills and abilities are secondary to their immutable characteristics, a message that can only reduce confidence in judicial decisions and the court system as a whole.  

Congratulations to all the nominees. The country will better off with your skill and talent filling our open judgeships.

Portland’s federal courthouse attacked again

The Mark O. Hatfield United States Courthouse in Portland, Oregon, which sustained significant damage in last summer’s Antifa riots, was attacked again over the weekend — just three days after federal officials removed the non-scalable fencing that had surrounded the courthouse since August. (The fencing has since returned.)

As shown in the video directly below, vandals broke courthouse windows and covered the building with obscene graffiti.

 

The Oregonian has a powerful article chronicling the damage, not only the the physical building but also to the public psyche.

Among the graffiti left on the front of the courthouse was a message that said in red, “NAZI’S WORK HERE.”

“As a first generation American whose parents lived through the horrors of World War II, in England and in Norway, you can’t say anything more offensive than alleging that the people who work inside that building, who I know and love, are Nazis,” Acting U.S. Attorney Scott Asphaug said Sunday.

“That building represents justice,” he said. “This is where people come to have their civil rights heard.”

The staff, attorneys and judges have continued to conduct courthouse operations throughout the past year’s mass protests, and will continue to do so undeterred, Asphaug said. Asphaug said he supports the rights of people to protest and make their voices heard but doesn’t support riotous behavior and the damage to the courthouse.

“The people who work in that building are a lot stronger than graffiti and broken windows,” he said, “and they’ll continue to do the important work they do.”

Anerican institutions may be imperfect, but they are grounded in time-honored truths about the value of liberty, opportunity, and equality. Their assailants, by contrast, are little more than common thugs and intellectual frauds.

More fallout from the Solar Winds hack

After last month’s revelation that the federal court system was among the victims of the Solar Winds cyberhack, leaving thousands of sensitive documents in the hands of Russian hackers, members of Congress are now demanding answers about the extent of the fallout. As one story notes:

Senators Richard Blumenthal, Dianne Feinstein, Patrick Leahy, Dick Durbin, Sheldon Whitehouse, Amy Klobuchar, Chris Coons, Mazie Hirono, and Cory Booker all signed on to a letter to the chief information officer at the Department of Justice and associate director of the administrative office of the U.S. Courts on Jan. 20 demanding a hearing on the changes and the potential access of court documents by the hackers.

“We are alarmed at the potential large-scale breach of sensitive and confident records and communications held by the DOJ and AO, and write to urgently request information about the impact and the steps being taken to mitigate the threat of this intrusion,” the senators wrote.

It’s not immediately clear to me why all of the signatories are Democratic senators. Perhaps it’s more pointless partisanship from a deeply dysfunctional Senate Judiciary Committee. But cybersecurity for the courts should be a bipartisan concern, and one can only hope that it will be treated as such.

The Administrative Office of the U.S. Courts has alraedy announced a plan to maintain sensitive filings on paper for the foreseeable future. We’ll see what develops in the coming weeks.

 

What should we expect of Biden when it comes to the judiciary?

The new administration is borrowing from Trump’s playbook, not Obama’s.

Three weeks into the Biden administration, the new President’s approach to the judicial branch is coming into focus. It looks a lot like that of his immediate predecessor, with a heavy focus on appointing federal judges and advancing court-related policies that satisfy the ruling party’s ideological litmus test.

Biden entered the White House with only 46 vacancies on the federal bench, and several pending nominations remaining from Trump’s final weeks. But when the runoff elections in Georgia produced a 50-50 Senate and the ability of Vice President Harris to serve as a tiebreaker, the calculus on judicial appointments changed. The White House rescinded all of the pending Trump-era nominations and put out a call for its own nominees. More conspicuously, progressive activists and academics began urging older federal judges to take senior status, a designation which would keep them on the bench with a reduced caseload, but which (more importantly) would open additional vacancies at the district court and circuit court level.

Biden last week also rejected any formal role for the American Bar Association in pre-vetting federal judicial nominees, a stunning move for a Democratic President. The ABA’s process focuses on a nominee’s ideologically neutral qualifications, like experience and temperament. For generations, its ratings of nominees has served as an additional quality check — and since most nominees are deemed qualified or well-qualified, an additional stamp of approval that can help with Senate confirmation. When Donald Trump rejected the ABA’s vetting role in early 2017, I described the action as an “unforced error.” And indeed, it was — the ABA continued to vet the nominees even without the President’s blessing, and identified a handful of candidates who were plainly unqualified for the federal bench. Rejecting the ABA four years ago opened the door for criticism that Trump’s nominations were based more on ideology than skill and competence; rejecting it now will open the identical door for Biden. Continue reading “What should we expect of Biden when it comes to the judiciary?”

Defendant seeks delay of major patent trial due to COVID

The primary defendant in a major patent case pending in the U.S. District Court for the District of Delaware has requested a delay of its scheduled trial due to concerns about conducting an in-person trial while COVID-19 rages on.

3G Licensing sued LG Electronics and others more than four years ago, alleging infringement of U.S. Patent No. 6,212,662. The patent concerns a method and devices for detecting transmission errors in data streams. Trial is scheduled for April, but in a letter to the court LG’s counsel worried about the ability to get a representative jury in the midst of a pandemic.

Courts have struggled to deal with trials during the coronvirus surge, with most delaying in-person trials or attempting to conduct them over video. Notwithstanding tireless efforts to assure due process and transparency for all parties, reactions to the videoconferenced trials have been mixed. At some point this year, courts should return in earnest to in-person trials (and will likely have a serious backlog to deal with). But it’s not fully clear whether that moment will come as soon as April.