by Lee Gesmer | Oct 19, 2006 | Courts
In the strange heat all litigation brings to bear on things, the very process of litigation fosters the most profound misunderstandings in the world. Renata Adler
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The Boston Bar Association (BBA) today issued a report entitled Report of the Boston Bar Association – Task Force on the Vanishing Jury Trial. The subtitle is “Jury Trial Trends in Massachusetts: The Need to Ensure Jury Trial Competency among Practicing Attorneys as a Result of the Vanishing Jury Trial Phenomenon.”
Lawyers may be forgetting how to try cases, but they haven’t forgotten how to write. Apart from the 37 words in the title, the full report is 38 pages long. It provides convincing evidence of the long-term trend toward a decline in jury trials (in both federal and state courts), and bemoans the fact that lawyers are experiencing this legal epiphany less often than in the past.
While I’m as “up” for a good old rollicking jury trial as the next guy or gal — with its enormous expense, unpredictability, risk of jury nullification, ignorance or disinterest, and stress on all concerned (mostly the clients) — I’m not sure that fewer jury trials is a “bad thing.” I would liken it to dentists bemoaning the lost opportunity to fill cavities. Darn that fluoride, flossing and better hygiene!
Personally, after 27 years in this “business”, I would attribute the dearth of civil trials to the following:
- Clients are far more sophisticated, and they are able to pull the plug (i.e., settle) more often. They are less dependent on their lawyers for the decision to do this. The prevalence of in-house counsel, who can advise more objectively on the issues, helps clients figure out what’s in their best interest.
- Judges are far more willing to issue summary judgment – to decide the case on the papers, without a trial.
- Lawyers are too expensive and, perforce, so are trials. Clients want to avoid that expense.
- Juries are notoriously unpredictable. Nothing new, but the news media has, I believe, made people more aware of this.
- The courts are too slow, and have priced themselves out of the market. Arbitration has become a good alternative to the jury trial – usually (note emphasis) it is faster, less expensive and more reliable in terms of a rational result. And, it eliminates the risk of a time-consuming and expensive appeal.
- Mediation resolves cases a very high percentage of the time, and parties are more sophisticated in electing to utilize it.
Oh, and the “vanishing jury trial” is not limited to the Massachusetts state courts by any means.
I tell clients from the first day a dispute arises that, no matter how angry or enthusiastic for a trial they may be, their case is likely (statistically speaking) to settle, and that they should constantly keep settlement options actively in mind. I tell them that the only reason a civil case should go to trial is if one side badly misjudges the facts or law underlying the case. If the case is close, it should settle (why take the risk of an all or nothing gamble?). If it is one-sided, it should settle, since it should be clear that one side is likely to lose.
Sadly, too many lawyers (you hear their ads on the radio and see them in the legal journals – “courtroom lawyers,” “trial lawyers”) are often as willing to take their clients to trial as generals are to commit their troops to battle.
So, the jury trial is dead, or at least moribund. Long live the jury trial!
by Lee Gesmer | Oct 19, 2006 | Courts, Patents, Trademark
I’ve been meaning to post some statistics reported by Price Waterhouse Coopers at the MCLE 9th Annual Intellectual Property Conference earlier this year. PWC has done a rigorous study of patent and trademark cases in the Federal District Courts and at the Court of Appeals for the Federal Circuit (CAFC) over the last 25 years. A few highlights and trends:
- In 2005, 4% of patent cases and 1.5% of trademark cases went through trial. (Presumably the balance were resolved via settlement or summary judgment).
- Juries award more damages in patent cases than bench trials. On the other hand, bench trials are more popular in trademark cases.
- The CAFC is a tough court: only 30% of damage awards are affirmed by the CAFC.
- Patent damage awards far exceed trademark damage awards.
- Patent awards’ fastest growth has been in the computer business services and electronics components sectors.
- Reasonable royalties (rather than lost profits) has become the most frequent measure of damages awarded in patent cases. (This may reflect the fact that more plaintiffs are nonpracticing inventors (sometimes referred to as “patent trolls“).
by Lee Gesmer | Oct 12, 2006 | Courts
We repeat this bumper sticker joke meaning no disrespect for U.S. District Court Judge Robert E. Keeton, who has retired at age 86 after 27 years on the federal bench. His retirement was effective September 8, 2006. You can find a link to the official announcement here.
Since being appointed to the bench in 1979, Judge Keeton presided over a number of significant cases, including a groundbreaking software copyright case involving Lotus 1-2-3 and the prosecution of political activist Lyndon LaRouche for conspiracy, mail fraud and tax evasion. He was also the trial judge who set aside the perjury conviction of Boston Police Officer Kenneth Conley – a decision that was upheld by the Federal Court of Appeals. Judge Keeton, a Harvard law professor, wrote extensively on various legal topics and was influential in the creation and adoption of the federal civil and criminal rules of procedure.
At age 86, Judge Keeton was the oldest member of the federal court in Massachusetts. Since 2003, he was a “senior” judge, meaning that he continued to take on cases but no longer worked on a full-time basis.
Of course, as we noted recently, some federal judges are only warming up at this age.
by Lee Gesmer | Oct 4, 2006 | Courts, Litigation
Lawyers know that one of the most unpredictable decisions a Superior Court judge can make involves long-arm jurisdiction – that is, whether the defendant has enough “contacts” with the state to be sued here. (For an article by the author discussing the state long-arm statute in depth, click here).
Two recent decisions illustrate this point. In Saint-Gobain Ceramics v. Happy Hewes Judge Bruce Henry ruled that there was no personal jurisdiction over Hewes, who lived in Illinois, despite the fact that Hewes had been an employee of Saint-Gobain, engaged in phone calls with Saint-Gobain in Massachusetts, had made multiple visits to Massachusetts on company business and had received paychecks from Saint-Gobain’s facility in the state. Most lawyers would tell you that this was more than enough to establish personal jurisdiction, but Judge Henry disagreed, noting that “whatever Hewes did during the unspecified number of contacts with Massachusetts was at his employer’s behest and not for his own purposes.” This line of reasoning has little basis in Massachusetts law that I’m aware of, but it persuaded Judge Henry, who dismissed the case against Happy Hewes, leaving Saint-Gobain to pursue him in Illinois.
On the other hand, in Deutch Williams v. Naturopathic Laboratories Int’l a Massachusetts law firm sued its former client for attorney’s fees. Even though the former client had no operations in Massachusetts and had never visited here in connection with the representation, Judge John Cratsley held that the client’s decision to hire the Massachusetts law firm, together with communications between the law firm and its client over a period of seven months, was enough to establish jurisdiction.
It’s hard to reconcile these two decisions on legal grounds. There’s little doubt that had the cases (but not the judges) been switched, the outcome in the two cases would have been reversed. The moral? The outcome of long-arm jurisdiction motions are hard to predict at best, but the luck of the draw (which judge you draw, that is), may have a greater impact on the outcome than the facts of the case.
by Lee Gesmer | Oct 3, 2006 | Courts, Miscellaneous
Courts. Although Allan van Gestel’s recall to the Suffolk County Business Litigation Session received moderate publicity last year, both Thayer Fremont-Smith (bio) and Hiller Zobel’s recall this year has received almost no attention at all. If these recalls were reported by Mass Lawyers Weekly, I can’t find it. Both judges are sitting in Middlesex for now.
by Lee Gesmer | Sep 26, 2006 | Courts, Litigation
Courts. Judge Jack B. Weinstein is a legend in the federal judicial system. A district court judge from 1967 to 1993, he has been on “senior status” (but with a full case load) for the last 13 years. Yesterday, this 85 year old judge issued one of the longest decisions ever published: the 540 page decision certifying a class action in Schwab v. Philip Morris USA, a case alleging that smokers were defrauded into believing that “light” cigarettes were less dangerous than regular cigarettes.
A link to this exhaustive and carefully reasoned decision, which may be the most significant by Judge Weinstein in his forty years on the bench, is here. Proponents of “early retirement” should take a look.
by Lee Gesmer | Oct 10, 2005 | Business Lit. Session, Courts
The Massachusetts Bar Association held an outstanding conference on the BLS in Boston on September 29, 2005. Several interesting documents distributed at the conference are linked below.
Here are a few observations on the conference.
First, the question foremost on everyone’s mind is whether Judge Allan Van Gestel will be “recalled” once he reaches the mandatory retirement age of 70 in December. In the eyes of most business lawyers in Massachusetts Judge Van Gestel is synonymous with the BLS. He was the first and only judge in the session five years ago, and although the session has had several other judge rotate through a second session (BLS2), its hard to imagine the BLS without Judge Van Gestel at the helm.
Moreover, Judge Van Gestel has created a Superior Court jurisprudence in the BLS which gives an unprecedented level of predictability to Superior Court practice. A quick Westlaw search on “Van Gestel” during the last five years results in over 250 written decisions.
It’s common knowledge among members of the bar that Judge Van Gestel is eager to be recalled after he turns 70 at the end of the year. Judge Van Gestel confirmed this over lunch with several lawyers on September 29th. However, as the Judge told the lawyers at his table, although many Appeals Court judges have been recalled in recent years (owing to an inadequate number of judges to handle the caseload on that bench) it has been twenty-five years since a Superior Court Judge has been recalled.
While Judge Van Gestel appeared to be optimistic that he would be recalled, recall requires action by both the Chief Justice of the Supreme Judicial Court and the Chief Administrative Judge of the Superior Court, and we can’t assume that this is a done deal until it actually happens.
Second, the judges (and some of the speakers, many of whom did a tremendous amount of work for this conference), made a few interesting points:
- The BLS is the court where many employers try to enforce non compete agreements. One speaker who had reviewed all of the BLS decisions in this area reported that preliminary injunctions in this area succeed only 30% of the time. Listening to Judges Van Gestel, Gants and Burns discuss their attitudes on the enforceability of non competes left me with a distinct impression: although this special session of the Superior Court wants to be known as the Business Litigation Session, it does not want to be known as the “Pro-Business Litigation Session,” and businesses shouldn’t assume that they have an edge in enforcing non compete agreements before this court. In fact, just the opposite may be true.
- The judges noted how rare jury trials are in the BLS. Many Massachusetts lawyers have attended “View From the Court” programs where trial statistics are discussed by the Chief Administrative Judge, and hear the discouraging (to the ear of a trial lawyer) statistics: approximately 96% of all civil cases settle, and the few that don’t tend to be tort cases. It’s no surprise, therefore, to hear that trials are even scarcer in the BLS, where (one would hope) emotions play a minimal role and rationale business people objectively assess their chances before wading into the unpredictable waters of jury trials.
by Lee Gesmer | Sep 14, 2005 | Courts
The Supreme Judicial Court and Suffolk University Law School are webcasting oral arguments, both live and archived.
- Link to the Massachusetts Supreme Judicial Court Oral Arguments Site here.
by Lee Gesmer | Sep 13, 2005 | Business Lit. Session, Courts
Business Litigation Session. Judge Allan Van Gestel has been the presiding judge in the Suffolk Superior Court Business Litigation Session (the BLS), since its inception in October 2000. The session has been an unqualified success, and is closely associated with Judge Van Gestel, who has brought expertise and integrity to the session.
However, Massachusetts has a mandatory retirement age of 70, and Judge Van Gestel turns 70 in December.
For an article discussing the history of the session and Judge Van Gestel’s imminent retirement click here.
For the rules of the BLS click here.
The question on the minds of many Massachusetts lawyers, of course, is whether Judge Van Gestel will be “recalled” for special assignments. Judge Van Gestel reportedly is open to the prospect, but so far, the State is mum on this issue.
