News

     CCL President Robert S. Peck reported on the new Restatement of Insurance Liability Law, promulgated by the American Law Institute (ALI), in May to members of the Insurance Law Section of the American Association for Justice, meeting in Denver, Colorado at AAJ's Summer Convention on July 8. The ALI is a prestigious organization of lawyers, law professors and jurists, which publish the authoritatively regarded Restatements of the Law on various subjects. Peck is a member of the ALI.

     Peck described the new Restatement as consumer-friendly, recognizing that consumers rarely have much say over the insurance contracts they sign. During the recent ALI meeting, which gave final approval to the new restatement, members rejected a number of amendments offered by the insurance industry that would have weakened consumer protections in the black-letter law of the proposed Restatement. The result, Peck said, is one that should provide courts with substantial guidance in resolving disputes between insurers and their insured.

     CCL President Robert S. Peck participated in the Legal Affairs Committee meeting at the Summer Convention of the American Association for Justice on July 8, 2018 in Denver, Colorado. At the meeting, members discussed the latest legal developments affecting civil justice issues. Peck also reported on recent litigation undertaken by CCL to protect access to the courts.

     CCL President Robert S. Peck reminded judges attending the 2018 Pound Institute Forum for State Appellate Judges in Denver, Colorado, that state constitutions provide a double protection for individual rights that may go beyond the protections afforded by the U.S. Constitution and that state judges also have the authority to interpret the U.S. Constitution. He urged the judges, in appropriate cases, to use the incorporation doctrine to apply the Seventh Amendment's civil jury trial right to the states.

    The Pound forum focused on state constitutions this year. Professors Robert Williams of Rutgers Law School and Justin Long of Wayne State Law School presented papers on state constitutions. Peck was among the panelists commenting on the paper of Professor Williams. At lunch, the 140 judges from 36 states heard from Justice Goodwin Liu of the California Supreme Court, who reprised his Brennan Lecture of last year, delivered at New York University Law School. The lecture focused on the need to undertake an independent interpretation of state constitutional provisions and not to simply adopt the U.S. Supreme Court's views on similar federal rights.

     In Peck's remarks, judges heard about some of the reasons state constitutions, with their own unique text, support a stronger application. Still, he noted that sometimes federal provisions provide strong rights that should be applicable to the states. He gave the Seventh Amendment jury-trial right as an example of the rare Bill of Rights provision that had not been applied to states. He noted that little of the Bill of Rights had been made applicable until the 1960s. The Seventh Amendment's status was a function of jurisprudence that dates back to the late 19th century. Yet, Peck said, when the Second Amendment was made applicable to the states in 2010 in McDonald v. City of Chicago, the Supreme Court urged lower courts not to rely on outdated 19th century precedents. Using the criteria that the Supreme Court said justified incorporating the Second Amendment, Peck pointed out that the Seventh Amendment qualified as well, with an even stronger claim to incorporation.

     CCL President Robert S. Peck spoke twice at a research symposium focused on federal court in Berkeley, California. Sponsored by the Civil Justice Research Institute, a joint project of the law schools of the University of California at Berkeley ant Irvine, the one-day event explored "What's Happening in Federal Court: Recent Findings and Research Findings for the Future."

    Peck served as a moderator and commentator on the first panel, which examined a paper by University of Connecticut law professors Alexandra Lahav and Peter Siegelman that found a profound decline in plaintiff win rates since 1985 and sought to test various hypotheses to explain the development.

    Peck also served on a panel at the end of the day, where he discussed both research techniques that should be employed more frequently and substantive topics for future research. Peck is a member of the advisory board for the Civil Justice Research Institute. 

     CCL President Robert S. Peck re-joined the Board of Overseers of the RAND Institute for Civil Justice (ICJ) last week, attending its Spring meeting at RAND's headquarters in Santa Monica, California. Peck previously served on the Board from 2004 to 2016, the last three years as chair.

     The ICJ is a think tank that undertakes empirical research designed to make the civil justice system more efficient and more equitable. It is a part of the RAND Corportation, a noted policy research organization with a long history of assisting policymakers obtain the best information available to address issues they face.

     At the Board meeting, Peck suggested that the ICJ undertake new research based on recent U.S. Supreme Court decisions on personal jurisdiction that reduce the ability of plaintiffs to bring all parties responsible for the injuries before a single court at once that could then assess liability and damages. In her dissent in Bristol-Meyers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017), Justice Sonia Sotomayor expressed the fear that these decisions will "curtail -- and in some cases eliminate -- plaintiffs' ability to hold corporations fully accountable for their nationwide conduct." Defendant corporations have cited Justice Sotomayor's dissent to claim that that indeed is what the Supreme Court held and intended, and some courts have agreed, holding that plaintiffs must file multiple lawsuits in different states to seek full compensation for their injuries. Research documenting this shift could inform the due-process analysis that undergirds decisions on personal jurisdiction, he said.

CCL’s Valerie M. Nannery attended the meeting of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (“Standing Committee”) in Phoenix, Arizona on January 7, 2016, where the Standing Committee discussed potential amendments to the rule governing class actions and proposed amendments to the time limit for appellate reply briefs. Nannery attended as an observer on behalf of the American Association for Justice. At the meeting, the chairs of each the advisory committees presented action items and information items for the Standing Committee to consider, including approval of the publication of proposed rule amendments for public comment.

Among the proposed rule amendments approved for publication are changes to the Federal Rules of Appellate Procedure that will lengthen the time to file a reply brief to 21 days, up from the current 14 days. This proposal was precipitated by the abrogation of the “three-day rule,” which currently gives appellants and cross-appellants an additional three days to file their reply briefs, making the effective time limit 17 days. Pending amendments to the Appellate Rules, which will go into effect December 1, 2016, unless the Supreme Court or Congress acts to stop it, abrogate the “three-day rule,” effectively reducing the amount of time to file a reply brief. The Standing Committee unanimously approved publication of proposed amendments to Rules 31 and 28.1 to allow 21 days for a reply brief to be filed.

The Civil Rules Advisory Committee received feedback from members of the Standing Committee on the current drafts of potential amendments to Civil Rule 23 regarding class actions. Much of the discussion focused on the current draft amendment intended to deal with objectors to class action settlements. The Civil Rules Advisory Committee will likely act on any proposed amendments at their next meeting in April, and will likely submit them to the Standing Committee in June for approval for publication for public comment. The Civil Rules Advisory Committee also received feedback from the Standing Committee on ideas for pilot projects and how to assess them.

A symposium issue of the New York University Law School’s Journal of Legislation & Public Policy features a transcript of a panel discussion on “The State of Judicial Recusal Reform, that includes presentations by CCL’s Robert S. Peck, Arizona State University law professor Myles Lynk, and Maryland Judge Roni Clarke. The panel was moderated by Indiana University law professor Charles Geyh and was part of a December 2014 symposium at NYU entitled, “Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton.” Caperton v A.T. Massey Coal Co. was a 2009 U.S. Supreme Court decision that held that recusal was required in certain instances where a party provided disproportionate funding for or against a judicial campaign. Other participants in the symposium included New York Chief Judge Jonathan Lippman, Ohio Chief Justice Maureen O’Connor, former Alabama Chief Justice Sue Bell Cobb, former Wisconsin Supreme Court justice Louis Butler, and New York Times Supreme Court reporter Adam Liptak.

CCL President Robert S. Peck served as moderator on November 18 for the “Conversation with the Chief Justices,” a wide-ranging discussion between state supreme court chief justices and members of the National Center for State Courts (NCSC) Lawyers Committee and Corporate Counsel Committees. Peck has served as the moderator for this annual Washington, D.C. event since it was started three years ago. Much of the discussion centered around recent attacks on courts and funding issues, as well as the role of the bar in defending the courts and helping secure adequate funding. The discussion was followed later that evening with the annual Rehnquist Dinner at the Supreme Court of the United States, hosted by Chief Justice John Roberts.

The following morning, Peck chaired the annual meeting of the NCSC Lawyers Committee, where he welcomed new members. The Committee discussed developments in the courts, were briefed by NCSC staff, and discussed future plans. Peck is a former co-chair of the Committee, substituting that morning for the current co-chairs, both of whom had court appearances.

As a member of the board of directors, CCL President Robert S. Peck participated in a meeting of Justice at Stake, a non-partisan judicial watchdog organization that advocates for fair and impartial courts. At the meeting, the Board approved the hiring of a new executive director and reviewed press coverage of the organization’s recent report on campaign spending in judicial elections. Peck serves as board secretary and is a member of the executive committee.

On November 5th, CCL Senior Litigation Counsel Valerie M. Nannery attended the meeting of the Advisory Committee on Civil Rules in Salt Lake City, UT, observing the proceedings on behalf of the American Association for Justice. At the meeting, the committee discussed publicity for the pending amendments to the Federal Rules of Civil Procedure, due to go into effect on December 1, 2015, absent action by Congress, as well as potential future amendments.

Much of the meeting focused on an extended discussion on the Rule 23 Subcommittee’s report and its “sketches” of potential amendments to Rule 23, which can be found in the Agenda Book for the meeting. After attending many events and hosting a “mini-conference” in September, the Subcommittee has narrowed its focus, and has moved some issues to the back burner. The Committee has taken a “settlement class” rule off of the agenda, and has put “ascertainability” and Rule 68 on hold. The Committee also approved taking cy pres and “issue classes” off of the agenda. The Subcommittee is focusing on six issues for potential amendments to be submitted for approval in Spring 2016: (1) Frontloading of issues to be submitted to the court before notice is sent to the class in cases involving a proposed settlement; (2) clarifying that an order directing notice to the class prior to certification of a settlement class is not appealable under Rule 23(f); (3) Clarifying that Rule 23(e)(1) notice triggers the opt-out period; (4) modernizing the rule concerning notice in (b)(3) classes to specifically include notice by electronic means; (5) revising the rules related to objectors to class action settlements; and (6) providing a condensed list of settlement approval criteria. The Advisory Committee will get feedback on these issues at the January 2016 Standing Committee meeting in Phoenix, AZ, and will revisit and potentially approve any proposed amendments to Rule 23 at its Spring 2016 meeting in Jacksonville, FL.

The Advisory Committee also engaged in a long discussion of pilot projects in civil litigation. The Committee discussed ways to implement pilot projects in federal courts, and which models to utilize. Some of these pilot projects involve increased mandatory disclosures and less discovery, short discovery cut offs and/or placing cases in “tracks” depending on their complexity. While “the charge for the subcommittee is to investigate pilot projects already completed in other locations and to recommend possible pilot projects for federal court,” several Advisory Committee members voiced the opinion that the purpose of studying pilot projects should be to propose new rule amendments implementing some of the procedures used in some pilot projects. While new rules to not appear to be in the offing at the moment, we could see proposed amendments on these issues in the future.

One of the members of the Committee brought up an article written by Professor Suja Thomas for Law360, and the letters she sent to judges and to the committees of the Judicial Conference of the United States, regarding the propriety of using the Duke Center for Judicial Studies’ “Discovery Proportionality Guidelines and Practices,” 99 Judicature, no.3, Winter 2015, at 47-60, to train federal judges on the interpretation of the amendments to Fed. R. Civ. P. 26(b), and the propriety of federal courts hosting events co-sponsored by the Duke Center and the ABA Section of Litigation, titled “Hello ‘Proportionality,’ Goodbye ‘Reasonably Calculated’: Reinventing Case Management and Discovery Under the ​2015 Civil Rules Amendments.” Federal judges and their clerks are invited to attend these events for free. The Duke Center’s Guidelines were also used at a training of federal magistrate judges by the Federal Judicial Center in the spring of 2015.

Several current and former members of the Civil Rules Advisory Committee participated in the Duke Center’s November 2014 “Bench-Bar-Academy Distinguished Lawyers’ Series” Conference on “Implementing the Proportionality Standard,” and also participated in the development of the Duke Center’s Guidelines, and will be panelists at the events co-sponsored by the Duke Center. The November 2014 Conference itself promoted the “key component” of the input of these federal judges, and said its stated goal was to “provide authoritative guidance on implementing the proportionality standard.” The current and former chairs of the Advisory Committee, and the chair of the Standing Committee responded that “the Duke guidelines and any presentation at the conferences do not come with the imprimatur of the Rules Committees,” and “The Duke Center, like other groups, is free to hold conferences or propose guidelines with respect to the rules or any other area of law. But they are not entitled to communicate, or suggest, that they bear the stamp of approval of the Rules Committees.” However, Professor Thomas’ article points out that the involvement of current and former members of the committees of the Judicial Conference in this private interpretation of the amendments makes the Duke Center’s process and its Guidelines appear “official,” even though they are not the law.