News

     Bloomberg Law has published an opinion piece by CCL President Robert S. Peck criticizing the trend in States of putting politics over justice by targeting prosecutors for their policies, rather than focusing on the real probelm of prosecutorial overreach.

     Covering such diverse topics as judicial independence, juries, police use of force, and evictions, CCL President Robert S. Peck participated in conversations intended to develop research and make practice use of it as a member of the Board of Advisers of the Civil Justice Research Initiative, a project of University of California at Berkeley School of Law.

      In addition, as a member of the Jury Working Group, Peck discussed ways to replicate a famous jury study from the 1960s that provided the most comprehensive statistics on jury use and behavior that has ever occurred. The daunting project would attempt to seek cooperation from judicial systems to have a number of smaller scale and geographically tied studies. Although still in the planning stages, the study would provide ways to increase use of juries, which has fallen off precipitously in the last decade, in efficient and beneficial ways.

     CCL President Robert S. Peck advises appellate advocates to prepare for a traditional question from a judge: "What is Your Best Case?" Judges often look for a simple straightforward answer to the question before them and sizing up each side's best case can often provide a powerful guide to decision.

     In a post on the Appellate Advocacy Blog, Peck suggests that an advocate not strain to find a "best case" when no single case answers the question. While there may be instances where it does, often an explanation of how several cases inexorably lead to the right conclusion may be necessary and should not be avoided when it is the correct way to look at the issue.

     CCL President Robert S. Peck argued that Who Serves on the Bench Matters in a post on the Appellate Advocacy Blog, a part of the Law Professors Blog Network. Although lawyers prefer to think that the rule of law prevails, we are also very aware that judges have viewpoints and experiences that color their approach to legal issues. Appellate lawyers look at the body of work of those on the bench and tailor their arguments to the panel that will hear the case. The "ideologically tinged" battles over confirmations and elections cannot help but translate into the types of rulings that come from a court. That the rhetoric of campaigns and slanted news presentations find its way into opinions has become obvious to even casual observers. 

     Using an example from a recent decision, where the dissent gratuitously called out the majority about an internal issue and the prospect of a new majority, Peck writes that, not only does who serves make a difference, but that the judges are also aware of it.

     Commenting on the latest draft of what will become a Restatement of the Law on Medical Malpractice from the American Law Institute, CCL President Robert S. Peck suggested that the draft needed to recognize that sometimes the defendant physician undertakes treatment that requires a different specialty. When that occurs, the rules governing expert witnesses should allow the plaintiff to have an expert who practices in the correct specialty testify about why that type of education and experience is essential and why the treating doctor committed medical negligence. 

     The ALI's Restatements are considered by many courts as authoritative descriptions of the law. Lawyers are elected to membership in the ALI based on outstanding achievements and experience. Those who comment on draft Restatements are usually members who have specialized interest or expertise in the topic. 

     In making his point about expert testimony, Peck used an example of a case he won in the Florida Supreme Court, Estate of McCall v. United States, in which inexperienced doctors botched a delivery, resulting in the young mother bleeding to death on the operating table. The doctors were awaiting a colleague who was operating at another hospital, when they could have easily sought help from veteran OB/GYN's who were on the other side of the wall, but worked for a different employer.

     Peck also commented on other aspects of the several hundred page draft, which will now take his and others' comments into account.

     Today, Bloomberg Law published an opinion piece co-authored by CCL President Robert S. Peck on revitalizing the use of jury trials as a means to regain confidence in the courts. 

     The article, Fixing the Public's Confidence in the Courts Starts with Juries, recognizes the continued downward slide of public confidence in the courts, as well as the silver lining that respect for juries remains high. It further notes that jury trials in civil cases have become exceedingly rare and must be restored if the courts are to maintain the public's respect. 

      The article was co-authored with law professors Richard Jolly of Southwestern Law School and Valerie Hans of Cornell Law School.

     The full Judiciary Committee of the U.S. House of Representatives heard testimony from four witnesses in its investigation of whether the Supreme Court needs a set of ethics rules, including from CCL client Rev. Robert Schenck. The hearing took its name from Rev. Schenck's earlier activities, now disavowed, and revealed in a New York Times story. It was called, "Undue Influence: Operation Higher Court and Politicking at SCOTUS."

      The Supreme Court is not subject to the same ethical rules as other federal judges, though it has said that it consults the rules applicable to other federal judges. A New York Times story about how Rev. Schenck and his former organization's supporters ingratiated themselves to some of the justices through large donations to the Supreme Court Historical Society and how they received advanced word of the result and authorship of the Hobby Lobby case triggered the December 8 hearing. CCL's Peck accompanied Rev. Schenck to the hearing to provide legal advice during questioning from the committee members.

       In addition to Rev. Schenck, who provided a factual account of his prior organization's activities, the Committee heard testimony from:

• Caroline Fredrickson, a visiting professor at Georgetown Law School and a member of the Presidential Commission on the Supreme Court of the United States, who spoke about the need for ethics rules and the ways it could be accomplished;
• Mark R. Paoletta, a partner at Schaerr Jaffe LLP, who made a partisan attack on the hearing and on Democratic appointees to the Court; and,
• Donald K. Sherman, Senior Vice President and Chief Counsel for Citizens for Responsibility and Ethics in Washington (CREW), who spoke about the need for ethical rules regardless of party of appointment or ideology. 

      In his latest posting on the Appellate Advocacy Blog, CCL President Robert S. Peck suggests "Two Overlooked Tips for Writing Briefs and Arguing Cases". 

      The first focuses on maintaining credibility. Too often, an advocate pushes the boundaries of a argument, overstating a proposition or the holding of a case, and reaches a breaking point that ultimately hurts the advocate's credibility on another issue or argument that a more supportable basis than the court might realize. Having undermined credibility on the earlier point, the advocate loses an opportunity to bring the court along on a more novel but viable assertion.

      A second tip reminds appellate counsel that judges are generalists and may not have background on the issue brought before them. Assuming that some seemingly basic aspects of the law on a particular issue are well known may do a disservice to the case. The advocate who practices in that area may find the point somewhat second-nature, but to someone outside that field a short description of the applicable legal principle can illuminate the more complex point.

     The Georgia Law Review has published Democratic Renewal and the Civil Jury,. an article that argues that reviving the use of civil juries can contribute to a renewal of aspects of our democracy that have fallen into disrepair. The article was written by Professor Richard L. Jolly of Southwestern Law School, Professor Valerie P. Hans of Cornell Law School, and CCL President Robert S. Peck.

     The article recognizes that civil jury trials have become rare events, especially after the COVID-19 pandemic affected in-person courtroom events. Yet, jury trials remain a constitutionally guaranteed right, one that the Framers of the Constitution regarded as essential. Yet, from the beginning, trusting laypeople to determine the facts of a dispute was the subject of derision by elites. Their critique, however, is misplaced. Juries do a remarkably good job of sifting through the evidence and determining the facts. For that reason, providing an educational outlet for participation in the democratic aspects of the judicial system can help to renew commitment to democracy and its ideals, the article contends.

     The article also offers six steps that should be taken to revive jury trials:

1.  Remove obstacles to jury trials, such as the requirement that a jury trial be requested at the outset, rather than default to a judge-tried case;

2.  Remove damage caps, which revise the jury's verdict to legislatively;

3.  Expand procedural innovations, such as expedited trials;

4.  Ensure representative juries; 

5.  Return to 12-member juries; and,

6.  Adopt active jury reforms, such as providing instructions at the outset and permitting jury questions.

     The Conference of Chief Justices met in Washington, as part of activities sponsored by the National Center for State Courts (NCSC). One highlight of the meeting is the "Conversation with the Chief Justices" of the states' highest courts. As he has for more than a decade, CCL President Robert S. Peck moderated the conversation, in which more than 20 chief justices participated. Invitees to the conversation include members of the NCSC lawyers and corporate counsel committees. The event is capped the same evening by a dinner at the U.S. Supreme Court, where a state judge doing innovative work is honored with the Rehnquist Award.