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Thursday, April 22, 2010

Justices struggle with civil procedure

The Court heard arguments yesterday in Krupski v. Costa Crociere dealing with relation back of amendments under FRCP 15(c). I am not particularly good at counting noses or predicting based on oral argument, but a couple things jumped out at me.

1) The Justices are not great at the minutiae of civil procedure. Not surprising, I guess, since only one of them has any trial-court experience and that was fifteen years ago. Still, there were a lot of questions that seemed to treat the limitations period as the relevant time frame, rather than the 120-day period that begins from the filing of the complaint--a mistake my 1Ls know not to make.

2) The Court was more focused on the particular, peculiar facts of this case than I might have expected. Neither party was asked what I thought would have been the $64 question--what does "mistake concerning the proper party's identity" mean? There was a lot of talk about mistakes and whether one can make a mistake even having full knowledge (including a Breyer-esque hypo about not listening to your wife when she gives you directions), but nothing tied to the actual language of the rule.

I thought they might get there when the Chief proposed a hypo in which the plaintiff did not know which one of two identifiable, unrelated actors was responsible and sued the wrong one, suggesting (correctly, I believe) that would not be a situation in which relation back would be allowed. Justice Kennedy followed up with the proposition (not an unreasonable one) that Rule 15 is only about clerical errors (calling the right person/entity by the wrong name), not the situation here of picking the wrong person/entity. Otherwise, there would be a mistake in this case (where, after a reasonable inquiry, the plaintiff should have known which corporate name should have been sued) that would be excused, but not in the Chief's hypo (where a reasonable inquiry would not have enabled the plaintiff to know).

3) Defense counsel got the hardest time over why on earth the plaintiff would have knowingly sued the wrong party, other than because she made a "mistake." No one would do something like that deliberately, so there must have been a mistake. This is consistent with some lower courts, which have said that a mistake comes any time a plaintiff fails to sue a potentially liable defendant. The answer is that while this is a mistake, it may not be a mistake "concerning the proper party's identity." But nobody (counsel or bench) made that point, unfortunately--because it is the key to a proper interpretation of the Rule.

4) Defense counsel also got a hard time from Justice Scalia about the relevant time period and whether a defendant could lose knowledge as the 120-day period goes along. The defense argument was that, even if it believed there was a mistake at the outset, the plaintiff's delays in amending (several months passed, beyond the 120-day period) suggested to them that there had been a conscious choice to sue the wrong party and not a mistake. Scalia insisted that defendant's knowledge "within" the period was all that was required, not knowledge "throughout" the period.

Again, I am not good at predicting. But I could see the Court handing down a fairly broad interpretation of "mistake." Either way, this is another area of civ pro that will not be the same as the year before.

Posted by Howard Wasserman on April 22, 2010 at 10:32 AM in Civil Procedure, Howard Wasserman | Permalink


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In that case, Wasserman for JPS's seat! :-)

Posted by: Hillel Y. Levin | Apr 25, 2010 8:34:20 PM

I would extend on Bruce's point--the level of understanding we get from teaching a subject is further dwarfed by the level we get from writing about it. I have written on relation back before, so i am particularly immersed in its details and nuances (which I then want to cover more in class).

Posted by: Howard Wasserman | Apr 23, 2010 1:35:20 PM


I entirely agree with you that if you teach material, you are likely to know more about it than a generalist.

I'm just not sure we should assume that Justice Ginsburg taught this material; and further, it seems to me that an intelligent generalist could and should be able to quickly understand what is at stake in this particular case, and what the relevant issues and questions are.

I don't really think that we disagree here. I just thought that your comment suggested too high of an expectation of Justice Ginsburg because of her teaching history, and too low of an expectation of all of the Justices.

Posted by: Hillel Y. Levin | Apr 23, 2010 12:47:40 PM

Hillel, I was extrapolating from myself. (Is that reductionist? Maybe.) I never had to grapple with 15(c)(1)(C) in practice. But I have had to grapple with it in teaching it. You're right that if you don't teach a particular topic, teaching a class in that general area helps not a whit, but if you do cover material, teaching that material gives you (I've found) a whole level of understanding way beyond simply being familiar with it. I've been surprised by the realizations I've made teaching copyright as a standard open-enrollment class this semester, despite having practiced and taught it for years.

Posted by: Bruce Boyden | Apr 23, 2010 11:49:28 AM

I agree with Hillel. You don't have to be an ace litigator, trial judge, a civ pro professor or anything more than a person with a good logical mind, some basic knowledge of the law and the ability to read carefully to understand civil procedure issues like this one. I just wish the justices would be willing to invest a little more time in thinking through the civil procedure cases they hear.

Posted by: Alexandra Lahav | Apr 22, 2010 10:03:47 PM

Teaching civ pro doesn't necessarily mean that one is especially or uniquely equipped to figure this out. Some civ pro courses, at some law schools, focus so heavily on jurisdiction and venue that they hardly touch the rules. And if they do touch the rules, they often focus on things like class actions, summary judgment, and other such topics (I'm not sure what the "such" is here--what do they have in common? I don't know.). Thus, even if Justice Ginsburg taught civil procedure, it isn't clear to me that she should be expected to be able to more readily parse the relation-back element of Rule 15 and its implications and applications.

I'm not beating up Justice Ginsburg or anyone else, or the priorities that different law schools or professors place with respect to civ pro course coverage. I'm just saying that it is overly reductionist to think "Justice Ginsburg taught civ pro, ergo she should have something more insightful to say about relation back under Rule 15 than Justice Roberts does."

Let's recall that Justice Souter, who had trial experience as a judge, wrote Twombly; and that opinion didn't indicate that he was overly familiar with something as basic as how pleading and discovery work.

It also strikes me that something as technical (and relatively rare, I think) as a difficult relation-back question is something that a solo plaintiff's side practitioner is likely to know more about than a partner at a fancy blue-chip law firm, even one who specializes in civil litigation. And, for reasons that ought to be obvious (though not necessarily good), it isn't likely that the plaintiff-side practitioner is high on very many Supreme Court shortlists.

In other words, don't hold out hope that the "diversity on the Court" meme is likely to reach far enough to lead to the nomination of someone with the kind of litigation experience that would make them uniquely suited to have developed deep views about Rule 15.

Finally, if we are at the point at which we need some specialized knowledge to reasonably handle Rule 15, then we're in deep trouble. This should not be all that complicated. I'm not saying there's a clearly right answer here; I'm saying that identifying the issues and relevant questions isn't hard. If our Supreme Court can't do this, that does not inspire great confidence when it comes to handling the much more complicated questions that the Court often engages.

Posted by: Hillel Y. Levin | Apr 22, 2010 4:09:21 PM

We get what we appointed and deserve: justices ignorant of science, math, logic, philosophy and economics.

What we have are a bunch of English, Poly Sci, International Studies and Government majors. Only Breyer has show any sophistication in subjects that require intelligence and grinding study.

Posted by: malthus | Apr 22, 2010 2:21:29 PM

Bruce: Ginsburg did used to teach civ pro, but yes, back in the pre-Schiavone/amendment days. Of course, Stevens, Scalia, and Kennedy were on the Court that promulgated the 1990 amendment, so you'd think . . ..

Rick: We discussed that point after Iqbal came out last year and after Sotomayor was nominated--making her the only one with any meaningful civil trial experience from either side of the bench.

Posted by: Howard Wasserman | Apr 22, 2010 1:29:14 PM

Didn't Ginsburg used to teach Civ Pro? I don't where I got that idea from, but I have it.

Re: the 120-day period, that could be because many of the justices have the old rule (from 1990!) still in their heads. I'm still having trouble adjusting to the restyling, which went into effect after I left practice, and I edit using the 15th edition of the Bluebook.

Posted by: Bruce Boyden | Apr 22, 2010 1:07:04 PM

Maybe this oral argument suggests that the criteria for desirable "diversity" on the SCOTUS should include diversity of work-experience: Should there be an "ace trial lawyer's" seat on SCOTUS?

Posted by: Rick Hills | Apr 22, 2010 12:32:28 PM

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