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CCL President Robert S. Peck spoke about recent decisions, rules proposals, and legislation that attempts to reverse the traditional idea that a plaintiff is master of the complaint at the American Association for Justice’s 2014 Leaders Forum Retreat in La Jolla, California on May 18.  Under the master of the complaint rule, a plaintiff may choose the claims and venue in which a dispute is litigated, subject to limited exceptions.  However, according to Peck, control over that process is rapidly diminishing and the obstacles to a person’s day in court, which was the promise of the 1938 adoption of the Federal Rules of Procedure, are growing. Specifically, Peck addressed issues of jurisdiction, removal to federal court, the plausibility requirement coming out of the Supreme Court’s Iqbal and Twombly decisions, the modern use of summary judgment, the battle over class actions, discovery, and renewed efforts to change state rules of procedure.  Peck said that trial lawyers need to be aware of the trends, fight back to guarantee clients a day in court, and begin to develop their own proposals to assure effective justice, not just efficient disposition of cases.

CCL President Robert S. Peck spoke to researchers at the RAND Institute for Civil Justice March 19 in Santa Monica, California, about the constitutionality of damage cap statutes and why they should almost never pass constitutional muster. He began his talk by describing the decision by the Florida Supreme Court last week that struck that state's cap on wrongful death damages in medical malpractice cases.  Peck had served as counsel in the case, Estate of McCall v. United States, and had argued it before the Florida Supreme Court. The Court held that the cap, which imposed both a per claim limit and an overall incident limit, violated due process because claimants' damages were reduced arbitrarily on the basis of the number of claimants injured.

Peck also discussed other constitutional bases for challenging damage caps, including the right to trial by jury, open court provisions, and separation of powers, using other CCL cases, such as Watts v. Lester E. Watts Med. Ctrs. (Mo. 2012) and Lebron v. Gottlieb Mem. Hosp. (Ill. 2010), as exemplars of the other approaches.

At the Midyear Meeting of the Conference of Chief Justices in Sea Island, Georgia, CCL’s Robert S. Peck led a January 29 discussion of issues concerning judicial disqualification among chief justices from the various states. Part of the conversation concerned the language of a resolution, considered by the chief justices the following morning.  At their January 30 business meeting, the Conference unanimously approved a resolution that urged “members to establish procedures that incorporate a transparent, timely, and independent review for determining a party’s motion for judicial disqualification/recusal.”  States have a variety of constitutional provisions, statutes, and court-promulgated rules that govern disqualification and recusal in the courts. Many existing rules do not cover the state’s highest courts, which often deal with the issue only by custom. The resolution may cause judiciaries in some states to review their existing approaches and consider more formal procedures.

CCL President Robert S. Peck reviewed recent U.S. Supreme Court decisions affecting plaintiff's trial practice, as well as proposed changes to the Federal Rules of Civil Procedure at the annual Hawaii Seminar conducted by the Consumer Attorneys of California in Maui.

Peck discussed issues dealing with jurisdiction over foreign defendants, arbitration, class actions, and pleadings, noting that the Court had made each more difficult for plaintiffs. Still, Peck said that careful attention to the triggers for the Court's holdings will enable plaintiffs to overcome many of the Court's recent rulings.

Peck also highlighted the importance of filing comments on the federal rules committees proposed changes to civil procedure, particularly those governing discovery.  He noted that, even though the rules were intended to cover procedure in the federal courts, the same rules inevitably come to govern state court procedures as well.

At its fall meeting in Washington, D.C., the National Center for State Courts (NCSC) held several sessions led by CCL attorneys. CCL President Robert S. Peck moderated a session November 21, entitled, "A conversation with Chief Justices," in which lawyers and corporate council had an opportunity to raise questions about issues facing the judicial system with more than 20 state Supreme Court chief justices.  Peck also co-chaired a November 22 meeting of the NCSC Lawyers Committee, which discussed a forthcoming task force effort to look at improving the civil justice system and other NCSC projects. CCL Senior Litigation Counsel Andre Mura also co-chaired a meeting that day of the NCSC Young Lawyers Committee, which discussed a civic education project using NCSC-produced graphic novels about the justice system, as well as presented on that project to the Lawyers Committee.

The NCSC is the think tank of the state courts and staffs the Conference of Chief Justices, the Conference of State Court Administrators, and other associations of judicial leaders.

CCL President Robert S. Peck spoke on emerging trends in civil justice at the Eighth Annual Judicial Symposium on Civil Justice Issues at George Mason University School of Law, the fourth time he served as the opening speaker at this judicial education program.  The audience of judges and webcast viewers heard Peck discuss recent rulings by the U.S. Supreme Court on a variety of civil justice issues.  Unlike its blockbuster ruling in Wal-Mart v. Dukes in 2011, Peck said that last term’s class action rulings addressed small, technical matters that could be overcome by workarounds that were not difficult to achieve.  The Court also declined several cases, including one handled by CCL this term, to resolve longstanding issues about the correct test to use for a state to exercise jurisdiction over foreign manufacturers.  However, he pointed out that another case this term, DaimlerChrysler v. Bauman, has some potential to indicate when a domestic corporation is subject to a state’s jurisdiction when only its wholly owned subsidiary is present in the state.  Peck said that that issue would only be reached if the Court were to decide the case broadly, as the issue actually presented in the case was whether the German automobile manufacturer could be subject to jurisdiction in California through its wholly owned U.S. subsidiary for actions taken by its wholly owned Argentinian subsidiary.  Because of the complicated fact pattern in this human rights case, Peck said it is entirely possible that the domestic issue would be left untouched.  The two-day symposium drew attendance from trial and appellate judges from state and federal courts across the country.

At a session of the Congressional Civil Justice Caucus Academy held in the Rayburn House Office Building on October 21, CCL President Robert S. Peck argued against a return to the 1983 version of the federal civil procedural rule that sanctions lawyers who file frivolous claims or defenses.  Representing the American Bar Association, which opposes the legislation at issue, Peck explained that "we have seen this movie before" and found it a disaster.

 From 1983 to 1993, Federal Rule of Civil Procedure 11 required judges issue mandatory sanctions against lawyers who filed so-called frivolous claims or defenses.  Experience made supporters of the stringent rule back off their support.  As Peck explained, judges applied inconsistent and unpredictable sanctions, including against lawyers who argued for positions subsequently adopted by the U.S. Supreme Court.  Perhaps even more importantly, the 1983 version of Rule 11 was used for unintended purposes.  Motions made pursuant to Rule 11 were not offered against frivolous actions, which were easily defeated on the merits, but as a tactical ploy against meritorious actions to make them more expensive to pursue. 

The Judicial Conference of the United States, the governing body of the federal courts, amended that version of Rule 11 because it resulted in significant collateral litigation, making cases more expensive, wasteful, and dilatory.  It was used against civil rights plaintiffs more frequently than against any other party.  Moreover, congressional imposition of an amended Rule 11, which would lack demonstrated need, is inconsistent with the Rules Enabling Act, the legislation regarded as a treaty between the legislative and judicial branches, that sets forth a considered procedure for changing the federal rules that utilizes input from the public, review within the judicial branch, and an opportunity for congressional veto.ssss

 Supporting the rule change through legislation against Peck was Shooky Hardy law partner Victor Schwartz, general counsel of the American Tort Reform Association, and Bradford Berenson, Vice President and General Counsel of General Electric. 

CCL President Robert S. Peck told congressional staffers that the upcoming Supreme Court term provided the Court with a large number of opportunities to rule narrowly or broadly in ways that could affect a variety of cases not before the Court while participating in the Congressional Civil Justice Caucus Academy's U.S. Supreme Court Briefing on October 4.

Focusing on DaimlerChrysler AG v. Bauman and Mississippi ex rel. Hood v. AU Optronics Corp., Peck stated that Bauman, which involves whether a foreign parent corporation can be sued for human rights violations in the United States based only on the contacts that a subsidiary has with the jurisdiction, holds important implications for whether a domestic corporation that operates in a state solely on the basis of its wholly owned subsidiary can be sued in that state.  Peck was co-counsel on an amicus brief making the same point that filed in Bauman on behalf of the American Association for Justice. Other counsel on that brief included Associate Dean Alan B. Morrison of George Washington University law school, Professor Arthur Miller of New York University law school, and Dean Erwin Chermerinsky of the University of California at Irvine law school.

 Hood raises the issue of whether the Class Action Fairness Act (CAFA), which permits certain class actions and "mass actions" to be removed from state court to federal court, applies to an Attorney General's lawsuit using the parens patriae authority of the State, which is an act of a sovereign state.  Past precedent, Peck said, would appear to foreclose application of CAFA to a State's own lawsuit, particularly where, as here, the state is acting under its antitrust and consumer protection statutes. 

 Peck was joined on the panel by Richard Faulk of Harrington LLP, who provided a more pro-business perspective.  The well-attended event was held at the Rayburn House Office Building.

Standing in the party’s shoes when considering a motion to recuse is one of the key pieces of advice CCL President Robert S. Peck gives judges in an article entitled, “A Jurist and a Lawyer Consider Judicial Recusal after Caperton,” published in the new issue of Judge’s Journal, a publication of the ABA’s Judicial Division. Coauthored with Judge N. Randy Smith of the U.S. Court of Appeals for the Ninth Circuit, Peck reviews the decision in Caperton v. A.T. Massey Coal Co. (2009), and discusses its implications.

Stating that there is enough experience since the 2009 decision “to know that Caperton-like disqualification motions will not become de rigueur,” Peck indicates that states revising their rules to heed the Supreme Court’s call for objective standards need not adopt “bright-line rules,” but instead reflect state-specific values, mindful of the need to assure a fair hearing.

At the Joint Annual Meeting of the Conference of Chief Justices and the Conference of State Court Administrators, CCL President Robert S. Peck spoke and moderated a panel discussion about the use of state constitutions to review the validity of state laws July 30.  Joining him on the panel were Justice Christine Durham of the Utah Supreme Court and Paul Bender, dean emeritus of the law school at Arizona State University. The panelists discussed state constitutions as having an independent protective force for constitutional rights, requiring a full-blown analysis irrespective of any rulings made by the U.S. Supreme Court on similar issues under the U.S. Constitution.  The session was one of the top-rated presentations during the meeting, which took place in Burlington, Vermont. Chief justices from more than 40 states attended.