In the last quarter-century and more, no current member of the Supreme Court tried a lawsuit of any kind to a judge or jury. Almost none of the justices has ever tried a civil case to verdict. And before their honors became appellate judges, only one of their number served as a full-time trial judge.
Does the justices’ nearly total lack of trial-lawyer chops matter? Has the almost utter absence of actual trial experience in fact degraded the quality of civil justice? And will confirming the nomination of a former trial lawyer like Neil Gorsuch make a difference?
More procedure, fewer trials
In the three decades since I started a commercial trial practice at Susman Godfrey, one trend has dominated: ever-greater procedural complexity.
From Celotex in 1986 (summary judgment before trial), Daubert in 1993 (admissibility of opinion evidence), Twombly in 2007 (early dismissal), and Wal-Mart in 2011 (class certification), the Court has time and again raised hurdles that collectively make getting to trial (much) more costly and (far) less likely.
John Marshall’s maxim, that the power to tax includes the power to destroy, holds true here. The share of civil cases that become one with the infinite before trial has soared in the last few decades.
Even that stunning statistic understates the trend. Some meritorious cases that once would have produced a trial never even got to the filing stage. The risks and costs have risen so much that the cases don’t involve enough money to yield the plaintiff (and her lawyer) a net benefit. Thanks in part to the Court’s own apparent anxiety about resolving civil disputes with trials on the merits, civil justice has become ever more a contest between wealthy adversaries who can shoulder the costs.
What I saw
My own experience before the Court left me thinking how imperfectly the justices understood the civil trial process.
A few months before I argued the case, the Court had granted cert on a Daubert issue. The Court changed the petitioner’s Question Presented so that it asked whether at the class certification stage of a case, expert evidence must meet the Daubert test.
But in formulating a new Question Presented, the Court missed a basic fact about the proceedings in the trial court: the other side never raised a Daubert issue and had thus forfeited it.
Would a trial lawyer have overlooked that fundamental problem?
At the argument itself, only one of the nine justices, the former trial judge, seemed aware of the gritty reality of the four days of testimony that resulted in extensive fact-finding by a trial court. Nor did they focus on the basics — like How much evidence do you need (a preponderance) and What must you show (that at trial admissible opinion evidence will support a verdict on class-wide issues)? When I gave the answer (that you must show by a preponderance of the evidence that your expert’s opinions on class-wide questions will pass muster at trial), a justice said the justice didn’t understand it that way but would give it some thought.
Nobel prize-winner Daniel Kahneman wrote in Thinking, Fast and Slow (2011) about the “availability heuristic.” As Wikipedia explains, it “is a mental shortcut that relies on immediate examples that come to a given person’s mind when evaluating a specific topic, concept, method or decision.” It “operates on the notion that if something can be recalled, it must be important, or at least more important than alternative solutions which are not as readily recalled.” As a result, “people tend to heavily weigh their judgments toward more recent information, making new opinions biased toward that latest news.”
Does the availability heuristic apply to judges? It must. And because it must, it implies that a judge who has actually tried cases will recall examples from those experiences. The judge will think of more examples, and will remember them more vividly, if he lived through them In the not-too-distant past. They will thus affect his thinking about a case. But the stories that he can tell from personal experience may also convince fellow judges who lack the same grounding in in trial work.
Which brings us to the pending nominee for Justice Antonin Scalia’s seat on the Court.
Neil Gorsuch did 10 years of trial work at Kellogg Huber before becoming a Tenth Circuit judge in 2005. The cases he helped try included an antitrust lawsuit that yielded a verdict and judgment for $1.05 billion. Conwood v. United States Tobacco Co., 290 F.3d 768 (6th Cir. 2002).
In 2015, Judge Gorsuch joined with a colleague to breathe new life into another verdict. That verdict also produced a judgment in excess of $1 billion. He praised the “diligent and properly instructed jury” and condemned “the needless financial expense” and “the emotional ordeal parties and witnesses must endure in any retrial”. Scott v. Rockwell Int’l Co., 790 F3.d 1088, 1105 (10th Cir. 2015), cert. denied, 136 S. Ct. 2055 (2016).
Judge Gorsuch has a solid background in trial lawyering. And if he becomes Associate Justice Gorsuch, he will fill a gap that has existed for decades on the Court.
That does not mean that I endorse Judge Gorsuch. I will watch with great interest to see and hear him and others testify in the Senate Judiciary Committee hearing that begins tomorrow on his nomination. But the civil justice system sorely needs a trial lawyer on the Court. I hope we get one soon.
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