COVID’s silent victim in the courts: traditional due process

Gothamist has a really nice piece by Beth Fertig about socially distanced trials in a Brooklyn Housing Court. Even with Herculean efforts on the part of judges and court staff, these trials are a mess. Lawyers and clients cannot sit next to each other. Entire courthouses have been deemed too small to hold any trials. Members of the public cannot view the trial because of social distancing restrictions. It just feels…weird.

The story underscores how deeply procedural fairness is built into a traditional trial. Under ordinary circumstances, trials would be open to the public and the media. Parties would sit with their lawyers and confer with them throughout the process. In jury trials, simply being in the courtroom would place pressure on jurors to pay close attention to the arguments and evidence. Lawyers would be able to confront witnesses without any fear that they are being coached by someone off-camera. There would be a strong sense of both party involvement and public transparency.

The coronavirus pandemic has forced courts to choose strategies that weaken one or both of these values. In-person, socially distanced trials allow some form of party involvement, including confronting witnesses. But they forfeit much of the transparency that benefits both the public and the parties. By contrast, videoconferenced trials are more amenable to public view, but raise problems for parties who lack the proper technology, or whose homes are more chaotic or challenging than the august, stoic nature of the courtroom.

All this is to say that the sooner we can get back to regular courtroom proceedings, the better. And in the meantime, we should be more cognizant of the due process considerations that are already so carefully built into our traditional trial structure.

Federal court will conduct three-week patent trial via Zoom

A federal judge in the Eastern District of Virginia has ordered a patent infringement trial to proceed as scheduled on May 6. The entire trial will be conducted through the Zoom videoconferencing platform. It is expected to take about three weeks.

Plaintiff Centripetal Networks, Inc. alleges that Cisco Systems is infringing five of its patents for network technology. The case was filed in early 2018.

Cisco opposed the Zoom trial, arguing first that it would expose its proprietary technology to the public, and second that if the trial were to go forward via videoconference, it would be safer to hold it through Webex rather than Zoom. Cisco owns the Webex platform. The court rejected both arguments.

Earlier this month, a Texas state court held a one-day bench trial via Zoom. But this is a much more complex case, involving multiple claims, patents, and witnesses. If it proves successful, it may open the door to many more bench trials being conducted remotely. If the court and parties encounter major technical glitches, however, it may set back the movement for remote trials considerably.

Does Japan owe its tradition of judicial independence to Czar Nicholas II?

Sort of, according to this wonderful article in the Japan Times. It relates how the Japanese courts, operating under the country’s nascent constitution in 1891, refused to bow to political pressure in Japan’s own “trial of the century.” And the Czar-to-be played an important cameo role.
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Japan: a land of many courts and relatively few judges

The Japan Times has an interesting article on the relatively small number of formal judges in that country, given its large number of courts. Japan has over 1,000 courts within its judicial hierarchy, but fewer than 4,000 total judges. And many of those judges have mostly administrative, as oppossed to courtroom, roles. That poses an challenging question for a country which works to take many cases to trial: how are there enough judges to hold all the trials guaranteed under the law?

The answer lies in a combination of (1) a broad network of judicial assistants, many of whom serve as shadow judges; and (2) resolving cases short of a full-blown trial. As the article explains:

How do they manage it? They get a lot of help; there are approximately 10,000 judicial clerks (shokikan) who play a key role in case management and documentation. Those with plenty of experience might well be called “magistrates” in that they effectively run some proceedings, such as bankruptcy and enforcement matters, where the need for formal judicial determinations of fact or law is limited. Some even end up as summary court judges.

In some family and civil proceedings, lawyers are also used as part-time “judges” (though they are not referred to by that term). Family and civil courts also rely on thousands of part-time conciliators from the neighboring community (including members of the local bar association) to help disputing parties arrive at mediated settlements. District courts also host labor tribunals that resolve labor cases using a mixed panel of a real judge and representatives of both sides of the employment relationship.

Still, most these proceedings are not “trials,” the right to which is supposedly guaranteed by Article 32 of the Constitution. In English, this bit of the charter appears to guarantee “the right of access to the courts,” but in Japanese it actually refers to “the right to a trial in a court.” That many cases are not actually trials is convenient because it means they can be resolved in closed proceedings (since constitutionally only “trials” must be conducted in open court) with fewer due-process protections.

Even when a case is or becomes a full-blown trial, it is not uncommon to hear lawyers complaining about judges cutting corners in civil cases to get them off their docket. This can often involve pressuring parties to settle. Some may be tempted to attribute this to cultural factors, but settlement is also just easier for judges — they don’t have to write a judgment or worry about being overturned on appeal.

The astute reader will identify many similarities to the current state of the American civil justice system, for better or for worse.

Why trial experience matters for new district judges

Gavel

Federal district court nominee Matthew Spencer Petersen’s embarrassing unfamiliarity with basic trial court and litigation concepts recently led me to observe that concrete trial and pretrial experience should be a baseline requirement for all federal trial court nominees. Not everyone sees it that way. At the National Review, Carrie Severino downplays Peterson’s lack of trial experience, noting that his work at the Federal Election Commission over the past decade “gave him significant exposure to the sort of regulatory cases that the [U.S. District Court for the District of Columbia, the court to which Peterson has been nominated] regularly decides.” And at Prawfsblawg, Howard Wasserman similarly suggested that “[t]here is a benefit to having judges of various backgrounds” on the district court, and that a nominee’s failure to have tried a case should not be disqualifying.  Other commentators have made comparable observations.

I respectfully disagree. Trial judges simply must have real trial experience, for the sake of the judicial institution and its users.

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