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CCL opposed proposed amendments to the Federal Rules of Appellate Procedure that would reduce the length of appellate briefs by 1,500 words in comments filed February 11.  The proposal would change the conversion rate from 280 words per page to 250. Contrary to assertions made by proponents, lowering the limit will not result in better briefing. The more likely consequence would be an increase in motions to exceed the limit, resulting in more work for both counsel and the courts. CCL also pointed out that the lower word limit would disproportionately impact amicus curiae briefs, which must include a statement of interest and other elements that go against the word count.

CCL’s comments supported proposals to covert page limits into word limits and to add provision for amicus briefs during an appellate court’s consideration of petitions for rehearing or rehearing en banc. CCL suggested that the proposed deadline for such briefs should be extended from 3 days to one week after the party has filed the petition for rehearing. In addition, CCL argued that the proposed limit of 2,000 words is unrealistic. CCL also suggested that the amendment to Rule 29 be broadened to make provision for amicus briefs at a subsequent consideration of the merits.

Finally, CCL did not oppose amending Rule 4(a)(4)(a) to clarify that post-judgment motions made outside of the time limits of the Civil Rules are not “timely,” and thus cannot toll the time for filing a civil appeal.

CCL’s comments were prepared by Senior Litigation Counsel Jeffrey R. White.

In a complex appeal, CCL attorneys filed their opening brief, asking the U.S. Court of Appeals for the Seventh Circuit to restore a jury’s verdict from the first trial after a second trial resulted in a diametrically opposed result. The dispute revolves around competing breach of contract claims between a federal contractor and the equipment supplier for a major construction project in Illinois on bids from the Army Corps of Engineers. CCL’s client, Slurry Systems, Inc., had won the bid to build slurry walls for the Chicago Underflow Plan at McCook Reservoir. To dig the foundations for the walls, Slurry Systems rented a 40-foot tall trench cutter from Bauer, a German company that manufactures the cutters and certified that the work could be completed within nine months using its equipment. Constant problems with the trench cutter and repeated failures by Bauer to effect repairs dragged the cutter rental out for 26 months. A Bauer subsidiary, Pileco, Inc., sued Slurry Systems in federal court for unpaid rent, while Slurry Systems counterclaimed for breaches of Bauer’s obligations under the contract and its warranty of merchantability of the equipment.

The first trial resulted in a $2 million dollar award to Pileco, which was offset by an award of $25 million to Slurry Systems on its claims, including $20 million in punitive damages. On his own motion, the magistrate judge presiding over the case refused to enter judgment on the verdict and ordered a new trial, asserting that the verdict was against the weight of the evidence because Slurry Systems deserved a higher award for the time and costs of when the trench cutter was out of service. In the second trial, however, a new jury again found for Pileco on its claims, but against Slurry Systems on its claims. Pileco asked for, but was denied, attorney fees and costs. Both sides appealed.

In the brief filed today, CCL’s Robert S. Peck and Kathryn Minton, representing Slurry Systems, asked the Seventh Circuit to order the District Court to revert to the first verdict, less the punitive damages, because the judge misapplied the law by ordering a new trial. The jury awarded punitive damages on a count for which it did not find any compensatory damages. Under the applicable Illinois law, the punitive damages had to be disallowed and did not provide a reason to retry the case. In addition, the brief argued that the judge has an obligation to reconcile the jury verdict or suggest a remittitur before the option of a new trial can be pursued, which requires a miscarriage of justice as a justification. No such egregious action occurred here, the brief argued. Even if the judge could order a new trial, the new trial was tainted by Pileco’s attempt to try a different case with a new legal theory, whic the rules governing retrials prohibit. Moreover, Peck and Minton argued that the new judgment was more egregiously against the weight of the evidence. The brief suggested the alternative remedy would be for judgment in Slurry System’s favor as a matter of law or a third trial.

On January 15, CCL’s Andre M. Mura argued in federal district court in Florida on behalf of consumers who purchased multiple-juice products sold by Wal-Mart. In this suit, filed as a class action, consumers argue that Wal-Mart’s juice labeling is false and misleading in violation of Florida law, because the products are being advertised as 100% Cranberry Pomegranate when in reality they consist primarily of white grape juice and apple juice. Wal-Mart moved to dismiss the suit, arguing that federal law immunizes it from all liability under state law even if its labels mislead, and even if its labeling does not comply with federal law. The district court held a hearing on the motion, which lasted nearly two hours. Appearing alongside co-counsel Tim Howard and Ankur Mehta of Howard and Associates, P.A, Andre M. Mura explained why this consumer suit is actionable, that federal law does not preempt the field, and urged the district court to deny Wal-Mart’s motion. A ruling is expected shortly.

CCL President Robert S. Peck called the chronic underfunding of state courts throughout the United States a profound constitutional issue and economically shortsighted at a one-day conference held by the RAND Institute for Civil Justice (ICJ) in Santa Monica, California January 12. The conference attracted legal and court leaders from throughout the country, exploring better ways to assure adequate funding for the courts.

An opening panel at the conference, "Discount Justice: State Court Budgeting in an Era of Fiscal Austerity," included Minnesota Chief Justice Lorie Gildea, Los Angeles Presiding Judge Carolyn Kuhl, and National Center for State Courts President Mary McQueen focusing on the depth of the problem and the various ways that courts have attempted to address it. Funding cuts have devastated the California courts, worse than other states, resulting in closed courthouses and courtrooms, employee layoffs and furloughs, trial delays, and an undermining of court modernization programs.

Peck spoke as part of a panel on constitutional issues raised by the cuts, with New York Chief Judge Jonathan Lippman and California lawyer Donna Melby. The panel agreed that a legal challenge was a last resort, but that precedent supported the courts. Peck described some of the past lawsuits over court funding, noting that the early 1970s were a high-water mark for challenges to underfunding. He noted that litigants, the bar, as well as judges, had standing to bring such actions, which were often premised on due process, separation of powers, and the courts' own inherent powers.

During a luncheon conversation, California Chief Justice Tani Cantil-Sakauye talked about the hardships effected by the cuts, the efficiencies that California has instituted to limit their impact, and the plans for the future when new economic hard-times are likely to hit.

Afternoon panels focused on the available and relevant research, as well as court services that may need to be abandoned or curtailed. Former ABA President Bill Robinson delivered a stem-winding keynote speech that reminded the audience that without funding, there is no law and no justice.

Peck, who serves as chair of the board of overseers for the co-sponsor ICJ, gave closing remarks that emphasized the continuing challenges ahead and the need to engage the broader public. The conference was also cosponsored by UCLA law school.