“Who are those guys, Butch?” -- Butch
Cassidy and the Sundance Kid
A hallmark of the Executive Committee of the Litigation Section is a deep commitment to serving our members as effectively as possible. Although potentially wonky, we need to be a data-driven organization. As the new chair, I think this means asking you what kind of law you practice and what you want from us. To that end, we just sent you a survey seeking answers to those questions (and several more).
What we learned was both useful and fascinating. Here are the highlights:
This information is hugely valuable as your volunteer Executive Committee and officers plan for the coming year. Many thanks to those who filled out our questionnaire. We look forward to turning these insights into high quality, responsive programs and publications.
While we are turning your perspectives into new programs and articles, it is worth remembering a few of our recent highlights. The combined Litigation and Appellate Summits were glittering affairs, featuring top-notch CLE programs. At our Fleet Week event in October, spearheaded by Justice Eileen Moore and sponsored by our Veterans and Military Committee, we were honored to hear California Supreme Court Justice Ming Chin give a moving tribute to our longtime Litigation Section advisor Jerry Sapiro for his courageous service to our country and his years of service to the Litigation Section.
Do have a warm and safe holiday. We have a lot coming up for you in 2019.
- Tom Greene
Thomas Greene is a Trial Attorney for the Antitrust Division of the U.S. Department of Justice based in San Francisco. He is the chair of the Litigation Section. The views expressed here are his and do not necessarily reflect those of the Antitrust Division or the Department of Justice.
Join us January 14, 2019 in San Francisco for our inaugural Military & Veterans Summit! Highlights include a panel on Military Sexual Trauma moderated by California Court of Appeal Justice Eileen C. Moore, expert insights into litigation challenging the federal administration's military transgender ban, and how California attorneys can help veterans obtain discharge upgrades. Register today to save your spot.
Come join your fellow Solo & Small Firm Attorneys at the Solo and Small Firm Summit: The 21st Century Law Firm
Hyatt Regency, Huntington Beach, Ca
The California Lawyers Association is excited to announce the re-launch of the Solo & Small Firm Summit to provide several days of sought-after educational programs designed to address the needs of legal professionals who work in a solo or small firm practice — from business management and technology to substantive law updates in areas commonly practiced in a solo or small firm setting.The Summit agenda also will include networking events, mentoring circles, and a vendor showcase with products and services unique to the solo or small firm practitioner.
For updates on the Solo Summit program and registration visit us at CAlawyers.org.
By Anna Offit & Richard Lorren Jolly
The civil jury is disappearing. Despite
constitutional or legislative protection
in every American jurisdiction,
juries today decide fewer civil disputes than
at any other point in history. For instance,
although federal juries decided roughly 15.2% of filed civil cases in 1940, they decided a
mere 0.63% in 2017. A similar trend is apparent
in all state courts that report their caseload
statistics, including California. This decline has serious consequences for not just
the health of our judiciary, but of our polity
more generally. It demands our attention.
Although quantitative figures document well
the alarming downward trend, qualitative research
by scholars and academic institutions
paint a fuller picture of what the decline of the
civil jury means. Interdisciplinary legal scholars
such as John Gastil and Richard Reuben
have drawn attention to the deep relationship between democratic governance and
the civic engagement of ordinary citizens
that results through jury service. Others,
including Myriam Gilles, have highlighted the
importance of court access, reminding us of
the perils of a justice system that precludes
poor litigants from having their day in court
due to the appearance of class action bans in
standard contracts, for example. In the wake
of the #MeToo movement, researchers are
increasingly questioning the wisdom of nondisclosure
agreements that can exclude lay
decision-makers — and the public more
broadly — from scrutiny of serious sexual
harassment allegations. (See research and
scholarship on issues discussed in this article
But while the culture and contexts that
sustain critiques like these have shifted, concern
about the exclusion of laypeople from
participating in judicial decision making is
nothing new. Over two centuries ago, William
Blackstone explained, “Every new tribunal
erected for the decision of facts, without the
intervention of a jury … is a step towards
establishing aristocracy, the most oppressive
of absolute government.” Thomas Jefferson
surely agreed, offering that if he were “called
upon to decide whether the people had best
be omitted in the legislative or in the judiciary
department, [he] would say it is better
leave them out of the legislative.” Even Plato
warned two millennia ago: “[I]n private suits
… all should have a share, for he has no
share in the administration of justice, is apt
to imagine that he has no share in the State
at all.” To be a juror is a political designation;
it is to be recognized as a full participant of
our polity. And indeed, it has been a hard
fought civil right for members of many traditionally
excluded groups through much of
this country’s history.
The jury, and specifically the civil jury, is
unique among American institutions.
It is the
only house of government positioned to
check abuses by not only the executive, judicial,
and legislative branches, but also by
powerful social and economic actors. It
serves as a mediator between the people and
those outsized forces, insuring that no government
act will be enforced without first
passing through a body of laymen. It is the
last line of our democracy before the state
can act on its people. Conscientious of this,
the Founders wrote the jury trial guarantee
directly into the Constitution. True, the protection
for civil juries was initially omitted.
But as Alexander Hamilton documented in
Federalist No. 83, the most common complaint
among Anti-Federalists was the original
Constitution’s lack of jury protections in
civil disputes. Many states refused to ratify
the instrument until a civil jury trial guarantee
was promised. Enter the Seventh
Amendment in 1789.
The jury remained in high esteem through
much of the early American period and
through the Civil War, though the twentieth
century has not been so kind. The introduction
of binding arbitration, which was flatly
prohibited at common law, emerged in 1925
at the behest of politically powerful railroad
companies. Then came the drafters of the
Federal Rules of Civil Procedure in 1938,
who outright despised jury trials—one
drafter even stated, “This method of settling
disputes is expensive, dilatory, and perhaps
anachronistic.” They drafted rules designed
to minimize the jury’s role in the combined
courts of law and equity. By the 1960s, overworked
judges needed new strategies to
handle the new system and developed managerial
approaches that injected them into
the dispute early on in the proceedings. And
the Supreme Court emboldened these
judges to dispose of cases more readily with
its Summary Judgment Trilogy in 1986. Each
of these timeline beats corresponded with a
steep decline in the rate of jury trials:
number of federal filings decided by civil jury
was 15.2% in 1940; 12% in 1952; 9.1% in 1982;
3.5% in 1992; 1.2% in 2002; and has remained
below 1% since 2005.
So the waiting question is what can be
done today to help stem the loss of this pivotal
institution? Building on the expertise of
state and federal judges who have participated
in workshops at New York University and
extensive programming around the country,
the Civil Jury Project has been studying trial
innovations designed to strengthen what is
left of the civil jury system. Among the many
recommendations, three trial techniques
have emerged as promising resources for
making litigation quicker, less costly, and
more just. These changes include efforts to:
(1) Limit the length of jury trials;
(2) Give substantive preliminary instructions
to jurors; and
(3) Permit jurors to discuss the evidence
before their final deliberation.
These recommendations have been
echoed by numerous bar organizations and
adopted in many state courts. Some judges
have gone so far as to engage in their own
experiments by soliciting anonymous feedback
on these trial techniques from former
jurors. And because these practices are not
prohibited in most jurisdictions, counsel can agree and recommend that judges allow
them. Finally, and significantly, these innovations
can improve broader attitudes toward
jury service, as former jurors report to
friends, family, and colleagues—through
social media and otherwise—that their jury
service was gratifying and inspiring.
This first innovation is perhaps the most
obvious. It entails shortening jury trials by
setting a maximum number of trial hours—
or days—for each party. Judges are free to
set such limits under their broad discretion
to control their dockets. And Principle 12 of
the ABA’s American Jury Project Principles
and Standards provides that “[c]ourts
should limit the length of jury trials insofar
as justice allows,” and that “jurors should be
fully informed of the trial schedule established.”
The sooner a judge sets time limits,
the more likely it will be that such limits
curtail the amount of costly pretrial discovery.
A lawyer facing a trial time limit of several
days, for example, will have a hard time
justifying to her client or partners the need
for multiple depositions that will remain
invisible to the jury. In this way, trial time
limits can “trickle down” and affect the
entire dispute resolution process. Moreover,
by the accounts of judges who have shared
their observations, setting reasonable time
limits does not compromise good representation;
rather, “trimming the fat” can result
in stronger arguments. Finally, one of the
most frequently voiced complaints by jurors
is that there was too much repetition of evidence
and arguments during trial. The
socio-economic representativeness of jurors
who are willing and able to serve is also likely
to increase as the anticipated trial length
decreases. Jurors are able to restructure
their other personal and professional obligations
so that they may be fully committed
judicial actors. Respecting jurors’ time is
critical if judges and practitioners rely on
jurors’ respect for the system.
Next, it is critical that judges and practitioners
empower jurors to make accurate
decisions by providing them with complete
substantive instructions on the relevant law
at the outset of the trial. Principle 6 of the
ABA’s Principles for Juries and Jury Trials
already suggests that “[c]ourts should educate
jurors regarding the essential aspects of
a jury trial.” And Federal Rule of Civil
Procedure 51(b)(3) provides federal courts
considerable leeway in determining when to
instruct a jury, stating that instruction may
take place “at any time before the jury is discharged.”
The purpose of giving substantive
instructions early on should be obvious. In all
other teaching environments, the instructor
provides directions before the recipient
undertakes the task—not when the task is
already completed. Accordingly, preliminary
substantive jury instructions are instructions
provided to jurors at the start of a trial—
before the presentation of evidence by the
parties—on the elements of a claim or
defense. A 2008 ABA study of preliminary
substantive instructions found that more
than 80% of jurors, 85% of judges, and 70%
of attorneys who participated stated they
believed that the intended goal of enhancing
juror understanding of the relevant law was
accomplished. More informed jurors mean
that the litigants, judge, and society in general
can have greater faith in the accuracy of
the resulting verdict.
The last innovation is that jurors should
be permitted to discuss evidence throughout
the trial so long as they agree not to reach a
final decision until after closing arguments.
The function of this small but significant
modification is to motivate juror engagement
and involvement in the trial in service of
more accurate fact-finding. Research shows
that jurors who discuss evidence during the
trial may recall the evidence more easily
when deliberations begin. Allowing jurors to
discuss the evidence when they are together
in the jury room also makes for a more
rewarding juror experience: Jurors do not
view time spent meaningfully in the jury room as wasted.
This practice has been heavily studied and
implemented in a handful of jurisdictions,
including Arizona, Colorado, and North
Dakota. The famous Arizona Jury Project
found that 89% of juries that were instructed
that they could, though were not required to
discuss evidence in the case before final
deliberations chose to do so. And data shows
that jurors who have been allowed to engage
in interim discussions, but have also been
instructed not to make any final decisions
until final deliberations, in fact follow this
instruction. There appears to be no difference
between those jurors allowed to discuss
and those prohibited from discussing
evidence as to when during the course of the
trial they started to solidify their decision of
who should win the case. Thus, neither side
should see themselves as disadvantaged by
While there are some critiques to the
above recommendations, there is no question
that decisive action must be taken if we
are to halt the civil jury’s steady march
toward extinction. Though it is unlikely that
the courts alone can turn back the
Constitutional clock and restore the civil jury
to its proper place in our judicial system,
judges are already inspiring bold and innovative
discussion of promising next steps. As
recently as 2017, now-Justice Gorsuch and
Judge Susan Graber suggested that the
Federal Rules of Civil Procedure Advisory
Committee adopt a jury-trial default rule, in
which parties automatically receive a jury
trial unless affirmatively waived because
such a rule would, among other benefits, be
more “true to the spirit of the Seventh
Amendment.” Advocates of the civil jury trial
might also benefit from harnessing some of
the moral outrage that pervades scholarly
attention to declining criminal jury trials.
Here, best-selling author Steven Brill has reminded us in evocative terms that the judicial
battle waged against the Seventh
Amendment is part of a broader battle waged
by corporate America against the everyday
consumers who see jury waiver clauses every
time they open bank accounts, buy cell
phones, and use credit cards.
Though modest and incremental, we see
promise that trial innovations including those
mentioned above can improve the administration
of justice by improving civil jury trials.
By helping to keep trials moving and
enhancing juror comprehension of evidence,
they facilitate quicker and cheaper public
dispute resolution for litigants. Judges who
have used these approaches have reported
satisfaction with their ability to more efficiently
manage their dockets. The innovations
greater respect the time and judgment
of jurors, who, in turn, may bring greater
enthusiasm and attentiveness to their deliberation.
And while these small changes are
unlikely to alone reverse the civil jury’s century
long decline, they may help illuminate a
new path forward, one in which the institution
is again recognized as a central part of
our political and social system. A place
where people of all backgrounds come
together to discuss, debate, and overcome
disagreement on some of society’s most difficult
issues. A place where democracy is
Anna Offit, JD, MPhil, PhD serves as a Research
Fellow for the Civil Jury Project at New York
University School of Law. Her empirical legal
research focuses on lay participation in justice
systems with a focus on prosecutorial decisionmaking
and legal ethics.
Richard Lorren Jolly, JD, MSc, serves as a
Research Fellow for the Civil Justice Research
Initiative at the University of California,
Berkeley and Irvine Schools of Law and is an
attorney in Los Angeles at Susman Godfrey,
The Veterans and Military Affairs Committee is one of the most important and vibrant new groups within the California Litigation Section. The Committee and the Litigation Section hosted a dynamic MCLE and networking event that took place during Fleet Week in San Francisco while the Blue Angels flew in the background.
Honorees at the event included veterans Justice Ming Chin of the California Supreme Court and former Litigation Section Chair and current advisor Jerome Sapiro. Committee Chair Nicklas Akers gave a terrific presentation which addressed important consumer protection issues facing our veterans and service people.
The event was held at the high-rise offices of Duane Morris, who donated the space and were a co-sponsor. Other co-sponsors were Brewer Law and Burnham Brown.
The Litigation Section is very excited to announce that there will be many more MCLE events hosted by the Veterans and Military Affairs Committee. The next seminar is the 2019 Military and Veterans Summit, which will be on January 14, 2019 in San Francisco. Please click the registration link.
The California Litigation Section and the Veterans and Military Affairs Committee are part of the California Lawyers Association which is the largest bar association in California.
The Jury Instructions Committee reviews and comments on proposed revisions to CACI civil jury instructions and verdict forms to help ensure they are legally accurate and comprehendible. The Judicial Council issues an invitation to comment on proposed revisions twice yearly in late December and late July. The Committee's carefully considered comments often result in meaningful improvements in the instructions. To participate in the review and comment process, please contact the Committee Chair Ben Ginsburg at firstname.lastname@example.org.
Sign up to volunteer:
Attorneys will be needed to help staff information hotlines and provide direct legal services through various California legal services programs and area law schools. Attorneys may also be needed to help supervise law students who can provide service. There are several places to sign up to assist with these efforts. This listing will be refreshed as more opportunities become available: State Bar of California Registry.
Pepperdine Law School currently has set up a clinic and they are in need of volunteers now to assist.
Butte County 1-800-345-9491 Los Angeles County 1-800-870-0732Ventura County 1-877-301-4448
The State Bar of California has set up a resource page.
Morrison and Foerster LLP has created comprehensive guides to help victims in disasters.
Disaster Legal Aid Collaborative of Northern California (formerly the Bay Area Resilience Collaborative) has training videos and resources available to train attorney volunteers. Information is currently housed on the Alameda County Bar website.
Disaster Legal Aid also has a significant number of resources, including resources for advocates, and sample forms.
The National Employment Law Project has updated materials to assist those who were not able to attend work in light of fires.
United Policyholders also has made available disaster resources as it relates to insurance issues.
Free Access to Fastcase is also available to attorneys or volunteers in need. Click here to register for a free trial . Or email email@example.com for additional support.
If you would prefer to make a financial donation to support legal services programs, please consider donating here: https://www.changelawyers.org/rapid-response.html
The Litigation Section offers outstanding MCLE through its webinar programs. Please check out the following upcoming webinars:
Monday, December 17, 2018, 12 noon - 1:01 p.m.
This program offers 1 MCLE credit and 1 Ethics credit. You must register in advance to participate.
Class litigation is a minefield of potential ethical problems for attorneys seeking to contact potential class members because of rules against contacts with represented parties. This program will cover:
Speakers: Lisa Maki, John Sullivan, Michael Geibelson, and Diane Karpman
Wednesday, January 16, 2019, 12 noon - 1 p.m.
A private investigator and a seasoned employment law specialist will provide practical tips on how to contact, interview and uncover valuable information from witnesses, including employees, former employees, and eyewitnesses during legal disputes and independent workplace investigations. The presentation will cover the following topics:
Speakers: Staci Dresher and Donna Rutter
Friday, January 18, 2019, 12 noon - 1:01 p.m.
Attorneys handling e-discovery have ethical duties to do so competently, and to protect their client’s confidentiality. This webinar will address how to meet those duties competently and cost-effectively. Formal Opinion No. 2015-193 of the Standing Committee On Professional Responsibility and Conduct of the California State Bar (“Committee Opinion”) opines that an attorney may violate ethical duties of competence by failing to understand and perform e-discovery skills. The Committee Opinion set out a list of nine e-discovery tasks that “attorneys handling e-discovery should be able to perform (either by themselves or in association with competent counsel or expert consultants).”
Speakers: Yoav Griver and Daniel Gelb
Moderator: Daniel Garrie
Thursday, January 24, 2019, 12 noon - 1 p.m.
This program offers 1 MCLE credit. You must register in advance to participate.
Prop 65 is a consumer right-to-know statute designed to inform consumers in California regarding possible chemical exposure in products they may choose to buy. Under new regulations, Prop 65 safe harbor warnings state that a particular product “can expose” consumers to one or more chemicals known by the State of California to cause cancer, birth defects, or reproductive toxicity. The California Office of Environmental Health Hazard Assessment (OEHHA), the regulatory agency in charge of publishing and updating the list of chemicals, is also in charge of proposing and adopting regulations related to the Prop 65 statutory scheme found at California Health & Safety Code section 25249.5 et seq.
The new amendments to the Prop 65 warning regulations adopted by OEHHA have led to a multitude of questions and issues with respect to compliance measures and allocation of responsibility along the chain-of-commerce for products that are sold, shipped or distributed into California. The new regulations, which amend the rules for providing clear and reasonable warnings, also establish a shift in liability for providing warnings which has resulted in a rash of correspondence both upstream and downstream to ensure other companies in the stream-of-commerce either are in compliance or will indemnify and defend another company if they are not. The flurry of industry distribution certifications has led to OEHHA proposing additional revisions to the regulations just focused on Prop 65 Safe Harbor warning responsibility in the chain of commerce. The new regulatory changes also dovetail with certain recent Court rulings that give rise to possible preemption or First Amendment challenges to the Prop 65 warning requirements.
The discussion will focus on key issues raised by the new regulations as well as how they may be impacted by recent Court rulings, and ongoing litigation.
Speakers: Hon. Elizabeth Allen White, Ryan Landis, and Laralei Paras
Moderator: Mary McKelvey
Friday, January 25, 2019, 12 noon - 1:05 p.m.
An estimated 80% of all cases that go to trial in California involve one or more experts. The California Supreme Court’s decision in Sargon v. University of Southern California significantly changed the standards for the admissibility of expert opinion in California trial courts. Using an innovative argument structure to make key points, an experienced trial judge and two outstanding trial lawyers will provide key insights into Sargon and its progeny. You will learn:
Speakers: Hon. Ernest Goldsmith, Susan Harriman, and Phillip Gregory
Moderator: Thomas Greene
Friday, February 1, 2019, 12 noon - 1:02 p.m.
This program offers 1 MCLE credit and 1 Ethics credit. You must register in advance to participate.
Formal Opinion No. 2015-193 of the Standing Committee On Professional Responsibility and Conduct of the California State Bar (“Committee Opinion”) opines that an attorney may violate ethical duties of competence by failing to understand and perform e-discovery skills. The Committee Opinion set out a list of nine e-discovery tasks that “attorneys handling e-discovery should be able to perform (either by themselves or in association with competent counsel or expert consultants).”
The nine skills from the Committee Opinion are:
Performing many of these skills competently requires understanding mobile device discovery
Mobile devices have become globally ubiquitous, both for personal and professional use. Increasingly, organizations need to consider their mobile device and application use when executing internal investigations and responding to Discovery requests.
This webinar will address the following questions counsel should ask when considering mobile devices in discovery:
Speakers: Kathleen McConnell and Damon Reissman
Moderator: Mark Michels
Friday, February 15, 2019, 12 noon - 1:30 p.m.
This program offers 1.5 MCLE credits and 1.5 Ethics credit. You must register in advance to participate.
California Superior Court Judges will discuss civility in litigation practice, including legal requirements and best practices. Topics covered will include: why civility is important, how civility is legally mandated, and best practices in discovery, deposition, oral argument, and motion practice.
Speakers: Hon. Ernest Goldsmith and Hon. Suzanne Bolanos
Moderator: Hon. Edward A. Torpoco
Friday, February 22, 2019, 12 noon - 1:01 p.m.
This program surveys the rules governing contact with represented and unrepresented parties, current and former employees, information subject to non-disclosure agreements, inadvertently produced information, and information procured through self-help by clients. Current and proposed California Rules and the ABA Model Rules will be covered.
Speaker: David McGown