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Wednesday, May 27, 2009

Trial experience, pleading, and the Supreme Court

One thing that has not been talked about at all is that, if confirmed, Sonia Sotomayor would be the only justice with experience as a trial judge. One criticism leveled at the Supreme Court for its recent pleading decisions has been the justices' apparent lack of awareness or care for how trial pretrial practice works on the ground or for how difficult it is for lower courts to make heads or tails of the Court's "guidance" on the issues. The hope is that a justice with trial-court experience can make her colleagues aware of life and litigation on the ground.

On subjects such as pleading, this may cut in multiple directions. As several commenters on some recent pointed out, there has been an ongoing back-and-forth between SCOTUS and the lower courts over pleading. Until Twombly in 2007, it had been the lower courts trying to ratchet the requirements up (especially in civil rights and antitrust cases) and the Court pulling them back (likely to the chagrin of the trial courts, who were looking to control their dockets). Now, it is SCOTUS taking the lead on telling the lower courts to demand more from the complaints, but with somewhat mixed signals and without much specificity as to what they should be looking for from pleadings. The result may be more cases being dismissed at the pleading stage, or it may just be another round of motion practice that district judges are going to be forced to deal with.

Moreover, the solution of ratcheting up the pleading requirements is based on the assumption that there is no other way to avoid abusive, expensive, and burdensome discovery for ultimately unfounded claims. The Court has twice rejected the idea that we can trust trial judges to wisely exercise their discretion and to keep discovery in check. It will be interesting to see if a former trial judge is as willing to assume such a lack of competence by lower-court judges.

Posted by Howard Wasserman on May 27, 2009 at 10:26 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


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I commend her rise to a Supreme Court nomination but not her interpretation of the Constitution.

She is an inspirational story but is too left for my taste.

Posted by: The Peoples Program | May 28, 2009 9:36:44 AM

There has been very little mention of her experience because the Republicans cannot vilify her for being one of the most experienced nominee's in SCOTUS history. Instead they are attacking her identity as a Latina and a woman and her acknowledgment of those realities. Tancredo's comment that she is a racist is rather rich coming from a person with his record of poor decision-making. The Guardian hit it spot on in their editorial when they wrote, “…to attack her for saying that her ethnicity and gender are important factors when serving on the bench is to somehow assume that the life experiences of conservative white men do not colour their legal opinions.” For more perspectives (and to see Tancredo's comment) watch this video http://www.newsy.com/videos/scrutiny_support_for_sotomayor

Posted by: Maggie | May 27, 2009 4:45:56 PM

And despite that experience, Justice Souter wrote an opinion (followed by an even worse one by Justice Kennedy) that: (1) betrayed little understanding of how civil litigation works; (2) ignored a fundamental premise (i.e., notice pleading) underlying the Federal Rules of Civil Procedure; (3) relied on distinctions (or created rules) that are unworkable (conlusions of law? conclusions of fact? plausibility?); (4) ignored the Federal Rules' sample pleading; (5) ignored Supreme Court precedent to the contrary; and (6) perhaps most shockingly - appears not to be based on what Rule 8(a)(2) (maybe Justices Souter and Kennedy just didn't get around to reading it).

While most of the blame lies with Justice Souter (and later, Kennedy) at least some must also fall on the law clerk (an astonishingly poor one) who drafted (or perhaps wrote) the opinion.

Posted by: Alex | May 27, 2009 2:19:26 PM

Justice Souter, author of Twombly of course, was a trial judge in the NH state system for several years.

Posted by: Scott Dodson | May 27, 2009 1:15:11 PM

Oh, and sorry if I kept you waiting too long.

Posted by: Howard Wasserman | May 27, 2009 10:52:55 AM


The point from your second paragraph (with which I agree) could be made about all Supreme Court decisions in all areas of law. The prevalence of multiple opinions, opinions that purport to keep the law unchanged but that are utterly irreconcilable with prior case law, and the overall lack of clarity and guidance from SCOTUS pronouncements is a problem throughout the law. I did not mention the point in the post because that problem does not create unique difficulties for trial courts much differently than it affects intermediate appellate courts; all lower courts are stuck trying to figure out what the hell SCOTUS is talking about. But pleading issues (and discovery, to the extent there are such cases from SCOTUS) are unique for the district courts, especially because many of those issues never reach the courts of appeals.

I was not trying to suggest that Justice Sotomayor would be more or less likely to loosen or tighten pleading, discovery, or summary judgment standards based on her trial experience. I was more trying to suggest that she will at least be aware of the potential trial-level consequences (good or bad) from what SCOTUS does).

Posted by: Howard Wasserman | May 27, 2009 10:52:34 AM


I was just WAITING for this post! ;-)

So here's the deal: in figuring out how a Supreme Court Justice will rule on these kinds of questions, I think it doesn't matter so much whether the Justice was a trial court judge or not. Some trial judges severely curtail discovery and grant borderline summary judgment motions regularly; others take a different approach--much as the Justices who were never trial court judges take different views.

Where I think it might matter, though, is in the relative specificity of Supreme Court opinions. In some cases, the Supreme Court seems to have no idea that its rulings might create serious uncertainties and difficulties in the trial courts. Perhaps a judge who has been faced with applying unclear judicial opinions will have something to say about it. Then again, it could cut either way: perhaps the judge would have liked more guidance, or perhaps she enjoyed the freedom imposed by vague judicial opinions.

Posted by: Hillel Y. Levin | May 27, 2009 10:39:31 AM

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