In Memoriam: Stephen Susman

This morning brought the sad news that renowned trial lawyer Stephen Susman has passed away from the novel coronavirus. He was 79.

Steve was widely known for his remarkable trial skills, and as a founder of the Houston litigation firm Susman Godfrey. But his professional energy and interests extended far beyond the courtroom. He was deeply active in efforts to improve the civil justice system and to preserve the civil jury trial. A few years ago, he founded the Civil Jury Project at NYU Law School for that express purpose, bringing together lawyers, judges, jurors, and scholars to study and advocate for the importance of civil juries.

I first met Steve about ten years ago, at the Duke Conference of the federal Advisory Committee on Civil Rules. As judges and lawyers struggled to determine the best way to rein in discovery costs, Steve pointed out how much can be done when opposing counsel simply act like adults and professionals. As proof, he submitted a two-page checklist of discovery agreements that he claimed to use in every case. It was a straightforward and sensible list, agreed to by counsel in advance, covering issues like the order of depositions and the labeling of exhibits — the type of things that would naturally keep discovery within reasonable limits and avoid pointless cost to the client. My favorite item remains the very first on the list:

As to any discovery dispute, the lead lawyers will try to resolve [it] by phone and no one will write letters to the other, including letters attached as pdf’s to emails and phone calls.

The entire checklist was so simple, and yet so brilliant, that I immediately sought permission to share it with my law students. (Steve graciously granted that permission in short order.) I still assign the checklist to my law students as a paradigm example of how a lawyer can simultaneously be a zealous advocate of his client and a responsible officer of the court.

About three years ago, Steve asked me to join the Civil Jury Project as an academic advisor, an invitation for which I was both honored and grateful. It was a pleasure to see him in action, with his relentless energy and good cheer, as he brought together jurors and lawyers at “jury improvement luncheons” across the country, and held programs for scholars to share their insights into the jury system.

Our thoughts are with Steve’s family today. His passing is a profound loss for the entire legal community.

 

 

Coming soon to your local fairground: jury trials?

Court administrators have had to act nimbly during the entirety of the coronavirus pandemic, in order to balance public safety with the requirements of due process. Now, some county courts in Oregon are considering yet another creative solution: holding jury trials at local fairgrounds in order to meet the requirements of social distancing.

The fairgrounds are already owned by the respective counties where trials might be held. They are easy to get to, have ample parking, and offer wide-open and largely unused buildings, making them an attractive option for courts. Still, there are many logistics that have yet to be worked out:

So far in Deschutes County, court officials have developed lists of what will be needed at the fairgrounds. On the to-do list is to look at the costs of renting tents and other furnishings like chairs, tables, maybe a riser to put a bench up on.

Heating, air conditioning and restrooms will be needed to keep people comfortable, because jurors need to be focused only on listening to the evidence, Ashby said. Secure and private rooms are needed for lawyers to meet with clients and jurors and judges to deliberate. Boxes and boxes of computer and recording equipment must be relocated and tied in with the county IT system and the fairgrounds PA system. Security is another primary concern.

“Our number one priority is making the courthouse as safe as humanly possible,” Ashby said. “Competing with that are statutory timelines, which require us to try cases, the most pressing of which are in-custody criminal defendants.”

Plans like this are born of necessity, but it will be fascinating to see what courts learn from the experience, and how some of these options might influence court administration after the pandemic subsides.

Texas holds first Zoom jury trial

Yesterday, Texas held the first jury trial to be conducted exclusively through Zoom videoconferencing. The one-day summary jury trial was also livestreamed on YouTube.

This represents a major development, given that every other jurisdiction has simply postponed jury trials until courthouses reopen.  And judges are increasingly opening to the idea of remote trials in some form. On the other hand, some judges remain steadfastly opposed to trials outside the physical courtroom, and with courthouses beginning to reopen in the coming weeks, it remains to be seen how common videoconference trials will become.

State courts extend and explain COVID-19 protocols

Yesterday, the Supreme Court of Colorado and the Supreme Judicial Court of Massachusetts respectively sent letters to their registered attorneys, informing them of recent measures taken to address the COVID-19 pandemic. Massachusetts will be extending its courthouse closures for most matters, including all jury and bench trials, while tolling statutes of limitations through the end of May. Colorado has delegated considerable administrative decisionmaking authority to the chief judge of each judicial district, in acknowledgement of the different circumstances and available resources in each district.

New England Law seeks Teaching Fellow

My institution, New England Law Boston, is hiring a full-time Teaching Fellow for a two-year term starting this August. The fellow will teach three courses a year — one or two of which will cover core first-year topics. The fellow will be an integrated member of the full-time faculty.

This is a great opportunity for individuals who are interested in getting into legal academia. New England Law is a great place to work, and our faculty is remarkably supportive of our colleagues as it pertains to teaching, scholarship, or any other aspect of law school life. I encourage interested parties to apply.

The full job posting can be found here.

Judicial Conference authorizes federal courts to hold certain criminal proceedings electronically

Last week, Congress passed the CARES Act, which most notably was designed to give a push to the American economy in the wake of the COVID-19 crisis. Nestled within that Act was a provision that permitted the Judicial Conference of the United States to determine that “emergency conditions due to the national emergency declared by the President with respect to COVID-19 will materially affect the functioning of the federal courts generally.” Such a finding would then permit chief judges of individual federal district courts to temporarily authorize videoconferences or teleconferences in certain criminal proceedings, solely in response to the coronavirus crisis.

The Judicial Conference made that authorization on Sunday, leaving it now to individual districts to determine whether to implement videoconferencing. It is worth noting that the legislation (which was passed with significant input from the Judicial Conference) is relatively narrow, and applies only to the current COVID-19 emergency. Moreover, the general authorization applies only to certain types of criminal proceedings: in particular, no felony plea or sentencing could be done by video- or teleconference unless the district court makes additional findings that such proceedings (1) cannot be done in person “without seriously jeopardizing public health and safety”, and (2) that “there are specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice.”

This is an entirely practical step, representing collaboration between Congress and the courts to protect the efficient operation of the criminal justice system. Whether it will open the door for further use of videoconferencing in non-emergency situations, however, is very much unsettled. And the current legislation has drawn criticism in some circles that it reduces much-needed transparency in criminal justice.

Parker Lewis can’t lose — a judicial election?

It’s primary season for candidates in contested judicial elections all around the country, a process that often brings out the best and the worst in our budding jurists. In California, the worst may be represented (for this cycle, at least) by San Diego Superior Court candidate Shawn McMillan, whose regular posting of raw political and social Facebook memes has drawn sharp criticism. McMillan has recently admitted that he posted “insensitive” material, and argues that he shared them “to spark a conversation.” If that was the goal, it worked: many people are now discussing how his actions do not reflect an acceptable level of judicial temperament and professionalism.

On a more positive note, The Hollywood Reporter conducted an interesting interview with attorney (and L.A. County Superior Court judicial candidate) Troy Slaten, who had a successful childhood acting career on television shows like Cagney & Lacey and Parker Lewis Can’t Lose. Slaten comes across as pretty thoughtful about the role of a state trial judge and the oddities of judicial elections. He’s certainly more thoughtful than the interviewer, who at times seems to revel in his own ignorance of the candidates.

Slaten points out in the interview that elections are a viable alternative for aspiring judges, because the politics of judicial appointments can be a substantial roadblock. It’s a fair point. But one might still wonder why Californians tolerate such a sloppy electoral process to select most of the their third branch of state government.

McConnell gives “golden gavel” to John Roberts after impeachment trial

After the close of the impeachment trial of President Trump this week, Senate Majority Leader Mitch McConnell presented Chief Justice John Roberts with a “golden gavel.” The token is ordinarily presented to Senators who have sat in the presiding chair for 100 hours. Roberts certainly filled that minimal qualification during his many hours presiding over the trial.

I recently took Elizabeth Warren to task for her trial question that crassly challenged the legitimacy of Roberts and the Supreme Court. McConnell’s presentation can be seen as only a slightly more subtle effort to politicize the Chief Justice for partisan gain. True, Roberts did yeoman’s work in presiding over the trial, all the while maintaining his busy day job (which only involves hearing oral arguments, writing opinions, navigating the personalities and needs of his fellow Justices, and managing an entire branch of the federal government). And in a different era, the presentation of the golden gavel might be properly viewed as a sincere token of appreciation. In this deeply partisan environment, however, it primarily exploits the Chief Justice’s participation to court favor with Republicans — a misappropriation of judicial goodwill for partisan gain.

 

 

You’ve read the blog — now hear the podcast!

The New England Law Review podcast was gracious enough to interview me about The Interdependent Third Branch, legal scholarship, social media, and other sundry issues. The law review editors do a great job with the podcast, and I recommend all the back episodes.

You can find the link here. Give it a listen!