ITLA FYI



Posted by: Taylor Mossman-Fletcher on Jan 4, 2021

 
2020.  Strung together, these four numbers bring such consternation. Those hardest hit by the ruthless events of 2020 are particularly ready to sweep them away and start fresh with a new set of four numbers.  The sadness, anger, vitriol, illness, division, and loss will not soon be forgotten.  For trial lawyers, 2020 has been a year of change in practices and in the judiciary.  This is the case for three reasons. The first, and most obvious reason, is the suspension of jury trials.  The second, but less immediately noticeable change comes with the appointments of key federal judges.  And lastly, 2020 and its actors have galvanized the phrase “Day in Court,” such that its meaning has taken on a new tone.  Although all three of these unforeseen circumstances of 2020 created mixed consequences, they arguably also give cause for hope. 
 
With respect to jury trials, the suspension of them has been chilling. That the suspension lasted this long and will go well into 2021 is even more startling.  Jury trials are, after all, a bedrock of the country’s foundation. Indeed, Thomas Jefferson stated, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”  Judgment handed down by peers in the community rather than by government or military verdicts is at the heart of due process.  Yet in 2020, this cherished and time-honored principle has been “suspended.” For trial lawyers, who have a compelling role in maintaining the sanctity of the jury trial, the suspension is naturally worrisome.
 
Because tribunals must balance the constitutional rights of citizens while navigating health concerns for all, courts are adopting various measures to work around the suspension of jury trials—video conferencing, virtual meetings, waiving appearance requirements, extending deadlines, or lessening jurors to allow for space and social distancing. The question 2020 leaves is whether these measures will increase efficiency or set the stage for massive backlog when jury trials resume. In the spirit of maintaining optimism, there is reason for hope.  As key participants in the judicial system, trial lawyers are proving they are ready to adapt for the benefit of clients, rather than at their expense.  Justices, judges, ALJs, referees, and mediators are also acclimating to new means of accomplishing discovery and resolution.  And the language of the 7th Amendment has not been tampered with.  Even a pandemic cannot pilfer a constitutional right.  (Only lawmakers can do that.)  Thus, the lull in jury trials will be just that—a lull. And on the other side, all of the training and adjusting to these novel litigation approaches will be used to effectuate efficient, less expensive, and more persuasive cases presented to juries.
 
Second, 2020 saw considerable changes to the federal judiciary.  While this sea change did not all occur in 2020, the height of the wave came in September with the death of the iconic and highly revered Ruth Bader Ginsberg (“RBG”).  For women, and in particular women lawyers, the death of RBG hit a particularly sorrowful nerve. To be clear, this grief hasn’t been felt by women alone, or even by liberal-leaning folks who felt anxious about another Trump appointment. RBG’s death is broadly grieved by all who champion access to courts and equal rights. RBG set the tone for female lawyers and jurists with the now-infamous “When there are nine” quote, thereby commanding respect for women in the law. Once more, while the loss of RBG is immeasurable, so too is the promise and hope of her legacy.
 
Before getting to the monumental appointment for RBG’s open seat, however, the swells in the sea change were already beginning to form. When President Trump took office, 44 percent of federal circuit court judges had been appointed by Republican presidents. By the fall of 2020, that number grew to 55 percent.  By the end of 2020, Trump will have appointed almost a quarter of all active federal judges in the United States.  On average, one in four of Trump’s appointments have been female, which is more than his Republican predecessors. However, in appointing a diverse judiciary, his record is disappointing, as 85% of his appointments are white.  Of course, the statistics do little to instruct on the quality of appointments made.   And in reality, the influence that the evolving federal judiciary will have on Idaho trial lawyers has yet to fully be realized.  Again, however, there is good reason for Idaho trial lawyers to have confidence in the conviction of their work.  2020 sparked conversation and highlighted the importance of our federal judiciary and the independence from persuasion its members must value.  Indeed, the federal judges in Idaho are often venerated for their reputation as independent jurists. Recent, and not so recent, additions to the Idaho federal judiciary have largely proven to be no exception. Although retirements are both pending and anticipated, the legacy of federal judges in Idaho is durable and robust, leaving trial lawyers in the state with grounded expectations for fair tribunals.
 
Finally, 2020 has given new life to the phrase “day in court.”  The traditional meaning has been reserved for the accused waiting to execute their due process rights and pronounce innocence.  In 1958, the phrase grew into popular culture by becoming the title of a daytime series in which actual cases were re-enacted by real judges and attorneys.   Over time, the “day in court” moniker became synonymous with an avenged litigant and eventually, and unfortunately, took on a whiny and litigious tone.  The “day in court” notion of frivolous lawsuits created the tort reform chasm, sucking the life out of the civil jury trial and staining the reputation of trial lawyers. 
 
2020, however, brought new life to the expression.  Interestingly, the newfound respect for one’s day in court has come from traditionally unlikely sources. At the national level, Senator Mitch McConnell has historically been one of tort reform’s biggest cheerleaders.  Even this year, while contemplating COVID-19 related immunity bills, Senator McConnell was quoted as saying, “the lawyers, trial lawyers, are sharpening their pencils to come after health care providers and businesses.” Of course, trial lawyers have known all along that a simple reckoning with causation would prevent that.  Regardless, COVID-related immunity bills passed rapidly at state legislative levels.
 
Nevertheless, McConnell’s and other characteristically anti-trial lawyer politicians’ tone changed after the election when they began suggesting that the President ought to have his day in court while pursuing election challenges.  While the challenges have generally been regarded as frivolous and/or lacking in evidence, his political supporters have remained steadfast with the “day in court” position.   Whatever the political advantages may be to these tactics, the fact remains that a person’s right to her “day in court” has been accentuated this year more than any other.  Again, the hope here is that the emphasis will uplift, rather than begrudge the importance of the judicial system.  After all, if the very top of our government is demanding access to the courts, then so too should the country’s citizens.
 
As 2021 approaches, the future of trial work seems uncertain, but also ripe with anticipation and vigor. When the pandemic forced courts to implement new changes and find creative solutions to accomplishing justice, it simultaneously nudged all judicial participants into a new era of technology and efficiency. The same will be said of Idaho Trial Lawyers.  With the jury trial lull approaching an end and motivation and courage to return to the courtroom at an all-time high, 2020 is just the catalyst needed for epic outcomes and verdicts in 2021.