Decline in jury trials the “single biggest loss” to the legal profession, judges say

At a conference at Berkeley this week, several prominent federal judges address the rapid decline in jury trials at the federal level, with Judge David Campbell of Arizona calling the decline the “single biggest loss” to the legal profession.

Law360 has a good roundup, including efforts by judges to make trials affordable and efficient again:

The trend has driven judges to try to incentivize lawyers and their clients to accept expedited litigation schedules so that the parties aren’t embroiled in protracted pretrial disputes for years, according to federal judges speaking at the event, which was hosted by the University of California, Berkeley School of Law’s Berkeley Judicial Institute and the California Law Review.

Judge Campbell said he tried giving parties the option of sending their cases to trial within four months of filing suit. At the outset, he would require the lawyers to provide their clients with two budgets: one budget that estimated the costs of “old-fashioned” litigation and another that would estimate how much it would cost to go to trial within four months, which was always cheaper, he said.

Out of about 800 civil cases, Judge Campbell said not a single one went to trial under the expedited format.  About 80 to 100 parties expressed an interest in the shorter litigation schedule, but the counter party in the case wouldn’t agree to it, the judge said. In three instances, both parties took him up on the offer, but then all three cases were either settled or dropped before trial, Judge Campbell said.

The decline of the jury trial is deeply troubling on many fronts, not the least of which is that is denies affected parties the opportunity to tell their stories in a dignified and open forum. The power behind the opportunity to be heard cannot be stressed enough — it is one of the primary reasons why courts have maintained their legitimacy as institutions.

Not every case should go to trial, of course. But too many cases settle for the wrong reasons — cost, delay, emotional toll, or the desire for secrecy. Restoring a culture of jury trials in our courts would be an important step toward restoring confidence in American democracy as a whole.

 

Ontario Court of Appeals allows livestreaming of carbon tax dispute

Ontario’s highest court is allowing livestreaming this week of an important case between the provincial government and Canada’s federal government over the latter’s imposition of a carbon tax. CBC cameras are being allowed to capture the arguments and share the broadcast with other media. These are the first televised arguments at the Ontario Court of Appeals since 2007. The first day of oral arguments can be found here.

Earlier this year, the Saskatchewan Court of Appeal also allowed livestreaming in a case involving a provincial challenge to the carbon tax, underscoring the special nature of this litigation. The real lesson: don’t get too comfortable with cameras in Canadian provincial courtrooms; the practice is still remarkably rare.

The opioid crisis and the state courts

The Indianapolis Star has published an interesting op-ed from Indiana Chief Justice Loretta Rush and Tennessee State Court Administrator Deborah Taylor Tate, exploring (at a high level) how the national opioid epidemic has affected state courts. A snippet:

[O]ne fact remains: the state court justice system is now the primary referral source for addiction treatment in the country.

This reality has put enormous strain on our nation’s state courts, many of which have been overwhelmed by growing dockets and shrinking resources. In a recent survey of chief justices and state court administrators, 55 percent ranked the opioid epidemic’s impact on the courts as severe. The survey results are unsurprising, given the complexity of opioid cases: it takes an enormous amount of time to figure out what’s best for people who are addicted, how to care for their children, and what resources are available for them. And those who are placed in a treatment program with court oversight may remain involved with the court for years.

The courts are often the place of last resort for problems facing society, and have no choice but to address those problems creatively and (usually) with limited budgets. The opioid crisis is certainly playing out that way.

Texas judge accidentally resigns via Facebook

William “Bill” McLeod, a well-respected Houston-area trial judge, was contemplating running for the Texas Supreme Court in the 2020 general election. Earlier this month, he stated as much on his Facebook page, unaware that such a declaration triggered an automatic resignation from his current position under Article 16, Section 65 of the Texas Constitution.

Harris and his supporters appealed the automatic removal, but this week Harris County commissioners voted 4-1 to uphold the resignation. It appears to have been a difficult decision, given that McLeod was a popular and experienced judge who won a sizable majority in the last election.

Still, there were important countervailing considerations: Continue reading “Texas judge accidentally resigns via Facebook”

Wheeler on the public and the federal judiciary

Liberals frustrated with the current direction of the U.S. Supreme Court have initiated another round of Court-packing schemes. These proposals are nothing more than sound and fury for an agitated left-of-center base, but Russell Wheeler of the Brookings Institute offers a typically insightful and sober analysis on a possible disconnect between the Court and the public, and what might result after 2020. It’s well worth the read.

Poland’s new “Disciplinary Office” is another political threat to judges

The relentless threats to the Polish judiciary from the state’s ruling “Law and Justice” party have taken yet another distressing turn. Just Security reports on the state’s new Disciplinary Office for Common Court Judges, designed to control and punish individual judges who stand up for the rule of law. As the article notes:

Together with the politicization of the Disciplinary Chamber, the message is clear for all members of the judiciary: follow the party line or face the consequences. Indeed, there are early indicators that most of the disciplinary actions taken against judges so far have targeted judges who have been outspoken on issues of judicial independence and the rule of law.

Alaska governor backs down, will choose judge from existing slate of nominees

Last week, Alaska Governor Mike Dunleavy refused to appoint a state trial judge from the list of nominees provided to him by the Alaska Judicial Council, expressing concern that certain qualified applicants were “inexplicably” not included on the list. In response, Alaska Chief Justice Joel Bolger defended the existing selection process.

The governor and chief justice met to discuss the impasse earlier this week, and seem to have reached an understanding. Dunleavy has now agreed that he must choose a judge from the existing list of nominees. Publicly, the governor has pushed to broaden the list of nominees in the future, which is a perfectly sensible policy discussion to take up. In the meantime, it is good news that this particular kerfuffle has ended with minimal damage.