Access to Justice

  • January 4, 2016
    Guest Post

    by Brooke D. Coleman, William C. Oltman Professor of Teaching Excellence, Seattle University School of Law

    When the Federal Rules of Civil Procedure were adopted in 1938, they came with a set of forms that were meant to illustrate and, importantly, suffice under the rules. These forms, according to the original rule makers, were key to the success of the Civil Rules because they would be the “pictures” that would accompany the rules. It is worth remembering that the ethos behind the adoption of the 1938 Civil Rules as a whole was to eliminate needless technicalities and barriers to access. Simplifying the process so that the merits could be reached was the goal. The forms were an important part of reaching that goal because a litigant could use the form, and as long as the form was used correctly, courts had to accept it.

    As of December 1, 2015, Rule 84 and the Official Forms were erased from the Civil Rules forever. As I have written here and here, there are a number of reasons to believe that this was a bad idea. (Others have also argued as much here and here.) The Civil Rules Committee argued that the forms were out of date and that the Committee wanted to get out of the form-making business. The easiest solution was to eliminate the forms altogether. As a consolation for eliminating the forms, the Committee stated that the Administrative Office of the Courts would publish sample forms for federal court litigants. It appears that this consolation prize is indeed in the works.

    In his year-end report for the Court, Chief Justice John Roberts explained that some new forms had already been drafted by “a group of experienced judges” assembled by the Administrative Office of the Courts. These new forms can be found here. Chief Justice Roberts explained further that the “outdated forms” of the past would be replaced with these “modern versions that reflect current practice and procedure.”

  • December 23, 2015

    by Jeremy Leaming

    University of Chicago law school professor Geoffrey Stone details a history of fear unsettling free speech rights in a piece for The Huffington Post. While a few law professors have recently argued that some restrictions on the First Amendment are needed in the face of terrorist threats, Stone writes:

    Given our grim history in periods of perceived or real crisis, and given how long it has taken us to attain the wisdom and insight we have gained through painful national experience, this is definitely not the time to turn back the clock and to revert to long discredited doctrines that served us so poorly in the past.

    Reuben Guttman, a leading litigator and founding partner of Guttman, Buschner & Brooks, looks at how increasingly public lives are shaping litigation. In a piece for The Global Legal Post, he writes:

    These days, trial lawyers comb through electronic databases reviewing emails that have not been filtered through drafting and editing. It is an age where we say what is on our mind, press a button and transmit information with typos, wit, and sometimes wisdom, but always with stream of consciousness.

    Will the Roberts Court, which has built a jurisprudence track record of advancing corporate America’s interests, further restrict legal means to challenge corporate malfeasance? Public Justice’s Chairman Arthur Bryant in a piece for The National Law Journal writes that recent oral argument in three cases suggest that “for three reasons, the court may be unlikely to issue the far-reaching decisions the corporations are seeking – and class action practitioners fear.”

  • December 2, 2015
    Guest Post

    by Jason Steed, Associate at Bell Nunnally and president of the ACS Dallas-Ft. Worth Lawyer Chapter

    Class actions are crucial to protecting the rights and interests of workers and consumers. If an employer underpays a worker a few dollars every paycheck—or a credit card company overcharges a consumer a few pennies per transaction—the total loss to that worker or consumer might be only a few hundred dollars. That might be a lot of money to the individual worker or consumer, but it’s not enough to justify hiring an attorney for a lawsuit. Class actions enable dozens or hundreds or even thousands of individuals to bundle their claims into a single lawsuit so workers and consumers can recover the sums they are owed. And the threat of a class action discourages corporations and other entities from adopting schemes that might nickel-and-dime us to death.

    This is why the Supreme Court’s recent decisions undermining class action litigation are of great concern to those who care about the rights and interests of workers and consumers. In 2011, for example, in a case called Wal-Mart Stores v. Dukes, the Supreme Court made it much harder to certify a nationwide class action for employees seeking to recover lost pay due to sexual discrimination. According to the Court’s majority in Dukes (made up of the five most conservative justices), employees can’t bring a class action for sexual discrimination unless they can show that every worker in the proposed class suffered exactly the same sort of bias and discrimination. Statistical sampling isn’t good enough to support the class action. And without the ability to rely on statistical sampling to show commonality among members of the proposed class, large corporations will now be much less likely to face large class actions based on claims of discrimination.

    This Dukes decision looms in the background as the Court considers another important class action case this term. In Tyson Foods, Inc. v. Bouaphakeo, a group of several thousand employees at Tyson Foods brought a class action claiming Tyson failed to pay them sufficient wages for the time they spent donning (putting on) and doffing (taking off) personal protective gear before and after work. To prove the amount of lost wages, the workers relied on statistical sampling—averaging the times that various employees spent donning and doffing their gear. The district court certified the class, a jury returned a verdict of $5.8 million for the employees, and the Eighth Circuit Court of Appeals affirmed this judgment.

  • November 18, 2015
    Guest Post

    by Doron M. Kalir, Clinical Professor of Law, Cleveland-Marshall College of Law

    The fact that the Roberts Court is business-friendly is, by now, well documented. It is also no secret that the Court is generally hostile to the once-venerable institution of class actions. And most recently, as The New York Times ably demonstrated, the Court has moved to elevate arbitration as the preferred mode of dispute resolution. The accumulated effect of these three trends has been devastating: Millions of Americans – customers, employees, patients, and investors, among others – are routinely denied their fundamental right to have a day in court. Some call that the privatization of the justice system.

    DIRECTV, Inc. v. Imburgia, a case emerging out of an intermediate state court in California, is another case reflecting these trends. At first sight, it may not seem a likely candidate to become one of the Term’s blockbusters. Allegedly a typical state contract-interpretation case, it looks benign, almost boring to read. Yet it is anything but. It represents nothing short of a last-ditch effort by state courts to shield consumers from these emerging trends. Will it be successful or – as some predict – destined to fail? Only days will tell.

    The facts of the case are somewhat complicated. In 2007, Amy Imburgia contracted with DIRECTV to receive programming services. Predictably, her Customer Agreement contained an arbitration-only, no-class action clause. Unpredictably, it also contained language abolishing that clause should “the law of your state . . . find this agreement to dispense with class action procedures unenforceable.” And that is precisely what happened – the California Supreme Court held such provisions to be “unconscionable” and therefore unenforceable.

    Four years later, in AT&T Mobility v. Concepcion, the U.S. Supreme Court reversed the California rule. Class-action waivers in arbitration agreements, the 5-to-4 decision held, are enforceable, reasoning that the Federal Arbitration Act (FAA) preempts state law. Despite Concepcion, however, the California Court of Appeals ruled in this matter that the individual-only arbitration clause is still unenforceable. Why? The court reasoned that the term “the law of your state,” as included in this particular consumer contract, should not be interpreted to include federal interpretation of that law (the “Supremacy Clause” version), but rather only state law as interpreted by state courts.

  • November 6, 2015
    Guest Post

    by Christina Swarns, Director of Litigation, NAACP Legal Defense and Educational Fund, Inc.

    In 1879, the United States Supreme Court declared that the singling out of qualified African Americans for removal from jury service “is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing individuals of the race that equal justice which the law aims to secure all others.” Although, in the subsequent 136 years, the Supreme Court has repeatedly condemned the practice of racial discrimination in jury selection, today, African Americans are excluded from jury service in ways that “seem[] better organized and more systematized than ever before.” Case in point: Foster v. Chatman, the jury discrimination challenge that was argued to the Supreme Court on Monday, November 2, 2015.

    Foster challenges Georgia prosecutors’ use of peremptory challenges to exclude African-American prospective jurors from the 1987 trial of Timothy Foster, an African-American man with intellectual disabilities who was charged with the murder of a White woman. Peremptory challenges are lawful opportunities for both prosecutors and defense attorneys to excuse prospective jurors from service in a particular trial. But there are limits to their use: In 1986, the Supreme Court held that these challenges cannot be based on race. Nonetheless, in Mr. Foster’s case, the prosecutors struck every single African-American prospective juror. As a result, an all-White jury convicted Mr. Foster of murder and sentenced him to death.

    When challenged, the Foster prosecutors offered a literal laundry list of supposedly race-neutral reasons for each of the strikes they exercised against the African-American prospective jurors. But the prosecutors’ notes, which were uncovered by the defense team some 20 years after Mr. Foster’s conviction, tell a completely different story. A note indicated that green highlighting “represent[s] blacks,” and the names of all the African-American jurors, but none of the White jurors, were highlighted in green. In their notes, the prosecutors referred to the African-American prospective jurors as “B#1, B#2, B#3,” while none of the White jurors were referred to solely by reference to race. In the prosecutors’ list of prospective jurors to strike, the name of every single prospective African-American juror was at the very top. The prosecutors ranked the African-American potential jurors in case they might “have to” seat one of them, but there was no similar ranking of all of the White prospective jurors. And last but not least, the supposedly race-neutral reasons offered by the prosecutors simply do not hold up: For example, the prosecutors said they struck one 34-year-old African-American juror because she was too close to the defendant’s age of 18, even though they accepted multiple White jurors who were actually closer in age to 18.