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Supreme Court nominee and current federal appeals court judge Neil Gorsuch has a plan, announced long before his potential elevation to the high court became a reality.  In a short two-page letter to to the advisory committee on the Federal Rules of Civil Procedure, Judge Gorsuch and Ninth Circuit Judge Susan Graber have proposed a plan (in the PDF opened by the link, see internal pages 73-74) that would apparently do away with the need for any party to federal civil litigation to request a jury trial; instead, the jury trial would be automatically granted by default unless waived in writing.  Under current practice, parties must affirmatively demand a jury trial in federal district court within certain time limits or their right to a jury trial may be lost.

Gorsuch and Kramer intentionally don’t provide many details in their proposal, but they are clearly concerned with parties’ inadvertent waiver of jury trial rights, particularly when cases are removed from state to federal court.  (Removal procedure, at least in my opinion, is among the most complex aspects of federal civil practice, and there’s no question that inadvertent waiver of jury trial rights in removed cases is a problem.)

There’s much to like and little to criticize in this proposal, and it’s nice to see two judges from different circuits (Judge Gorsuch sits on the Tenth Circuit) and generally differing ideologies come together to suggest reforms.  But does this go far enough?  In my experience, the more pressing problem with access to jury trials in federal court lies in the unfortunately limited resources allocated to the judiciary, a problem that is even worse in many states (California, for one, comes to mind).  This can result in long delays in getting a case to trial, which frustrates the litigants, can complicate access to witnesses and their testimony, and generally hampers the administration of justice.

Judges and court administrators aren’t to blame for this; they don’t control their funding for the most part and I believe that they work hard to make the best of a negative situation.  But if Judge Gorsuch wants to “revive” the civil trial, why not advocate for increased funding for the courts, not only in the federal system but at the state level as well?  His profile has increased dramatically since he and Judge Graber submitted their relatively noncontroversial idea in mid-June of 2016, and his far more visible platform could nicely enable an even bolder proposal.  It’s one thing to advocate sensible rule reform that prevents parties from waiving their rights to a jury trial without meaning to do so; it’s quite another to fight for increased funding for the judiciary so that the “revival” of the civil jury trial can really gain some steam.  Technical denial of jury trial rights is unfortunate and can and should be fixed, but the constructive denial of jury trial rights by a functional inability to get cases on the court’s trial docket within reasonable time frames is even more pressing.  Most lawyers and judges I know universally support examining solutions to this problem; perhaps Judge Gorsuch agrees and might speak out on the topic.

 

As scheduled and posted about previously, I appeared on Margaret McLean’s radio program “It’s A Crime” this part Saturday, June 22, and the appearance was a lot of fun. Margaret and I discussed her observations about cross-examination while covering the Whitey Bulger trial, and we also covered the status, just before opening statements, of the George Zimmerman second-degree murder trial in Sanford, Florida. I closed the show with a Supreme Court update; I think I forgot to predict that the Court would “punt” on Fisher v. University of Texas, however. It did.

I’ll link to the podcast on the show’s site when it becomes available. As always, Margaret was very kind and gracious and I enjoyed being on her program, which airs live every Saturday from 12 to 2 P.M. in Los Angeles and 3 P.M. to 5 P.M. in Philadephia.

Today, from 1 P.M. to 2 P.M. Pacific time, I’ll be making a return appearance as a guest on Margaret McLean’s syndicated radio program “It’s A Crime.”  Margaret is a law professor, legal analyst and former prosecutor, as well as a best-selling author of some really good legal fiction and a very nice, compelling person.  Her show airs in both Los Angeles (KCAA 1050 AM) and Philadelphia (WJNC 1360 AM), and can be accessed live from anywhere by loading this page and clicking on the provided link to KCAA’s live Internet feed.  Check it out for my discussion with Margaret about the Bulger, Zimmerman, and Jackson trials, and well as (time permitting) a review of the Supreme Court’s latest rulings and anticipated major case decisions next week.     

It’s not every day that the federal courts completely change the way they compute time, but on December 1, 2009, a set of sweeping new revisions to the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Federal Rules of Appellate Procedure and the Federal Rules of Bankruptcy Procedure became effective, doing just that. 

The changes were designed to eliminate deadline calculations that had served a trap for unwary litigants and counsel for years, and had generated frequent issues on appeal caused by “excusable neglect” and other counting problems.  Under the previous system, Federal Rule of Civil Procedure 6(a)(2) provided that in considering any time period imposed by the Federal Rules, local court rules, orders, or statutes, any period of less than 11 days was a “business day” calculation that excluded intermediate weekends and court holidays in computing the end date of the period.  

In other words, under the former system, if a party’s obligation to do something was triggered on Tuesday, January 5, and the party had a period of 10 days in which to act, the party’s deadline would be 15 days later, or Wednesday, January 20.   The intervening Saturdays (January 9, 16) and Sundays (January 10, 17) would not have been included in the calculation, nor would Martin Luther King, Jr’s birthday on January 18.  Counting ten days from January 5 and skipping those dates would leave a deadline of January 20.  

Since many federal rules and statutes do impose deadlines of 10 days or fewer following some action, this interesting time computation scheme showed up again and again, and evidently, enough litigants, lawyers, and court personnel had enough of it.  Under a revisions package dubbed “days are days,” new Federal Rule of Civil Procedure 6(a)(1)(B) requires “count[ing] every day,” irrespective of the length of the time period in question. 

Of course, since this would have resulted in a significant shortening of the amount of days for parties and their attorneys to prepare various filings, the new revisions also changed numerous time deadlines.  In most cases, periods of time of less than 30 days were changed to multiples of seven, so that in almost all cases, deadlines would fall on the same weekday as the triggering action.  For example, Fed. R. Civ. P. 12(a)(4)(A), requiring a party to serve a responsive pleading within a certain time after a court’s action on a Rule 12 motion challenging the complaint on various fundamental grounds, was changed from a 10-day period to a 14-day period.  Rule 12’s familiar 20-day period to answer or otherwise plead in response to a complaint is now 21 days.  Some rules got even more substantial makeovers – – Fed. R. Civ. P. 59(e) formerly provided for a period of 10 days following the entry of a judgment to file a “motion to alter or amend” – – colloquially, but not officially, known as a “motion for reconsideration,” but the new revisions extend that period to 28 days after the entry of judgment. 

As before, the day kicking off the period in question is not counted, and if the final day of a period falls on a Saturday, Sunday, or legal holiday, the deadline becomes the next day that is not a Saturday, Sunday, or legal holiday. 

Interestingly, those district courts around the country with local rules governing time restrictions were also required to change their computations, since the Federal Rules control – – but litigants should still be wary of situations in which a local rule provides for a shorter time for taking some action than a corresponding or similar Federal Rule.  Some districts, for example, only permitted 10 days to file motions for reconsideration.  Under the old day-counting rules, that 10 days would always be at least 14 days, but practitioners should check to determine any revisions to the district’s local rules.  Most 10-day periods in local rules appear to have been changed to 14 days, but there’s no guarantee – – and of course, in some situations, the local rules may have increased the time period slightly, but not gone as far as the applicable federal rules.  In many districts in which I practice, motions for reconsideration are now due 14 days instead of 10 from the date of the entry of judgment – – and new Rule 59(e)’s 28-day period doesn’t come into play. 

The new rules affected all pending actions unless manifest injustice would result from their application.  Simpler computation of deadline dates is an idea whose . . . time had probably come, but there are still plenty of timing traps out there, particularly in federal appellate practice, where filing deadlines are jurisdictional and cannot normally be extended. 

Check here for an informative slideshow from the U.S. Courts’ website explaining the new rules and many of the revised deadlines.