BY SHIRA A. SCHEINDLIN, 69 U. Miami L. Rev. 367 (2015).
First of all, I want to thank the University of Miami Law Review for creating this Symposium and inviting me to speak, which gave me the opportunity to think very hard about something I had not thought about systematically. It is a treat to be able to do that. We judges are so busy managing our caseload that we do not often have time to step back, think, and write on a subject. I am also grateful to you for inviting me because I like to be anywhere that Judge Jack B. Weinstein is at. If he is here, then I am delighted to be here.
I turn now to the subject at hand: When do judges find facts? We must not do any fact-finding when deciding summary judgment motions or motions to dismiss. So, when do we do it?
One instance is nonjury trials. Why are there nonjury trials? Sometimes parties waive their right to a jury. The parties may need detailed findings of fact and conclusions of law. They want someone to sit down and look hard at the facts, discuss them, and analyze them. Parties may want to create precedent—they want that judicial opinion on the books. For those reasons, sometimes the parties waive their right to a jury in order to obtain an opinion from a judge.
When else do we have nonjury trials? When the parties think a matter is too hard for the jury, they say, “this is too complex,” “this is a patent case,” “this is scientific, no jury will ever understand this, we better have a nonjury trial,” and I chuckle and say to myself, “I don’t know if I can understand it either, but they said I could, so I am going to have to try.” This may be a little bit of heresy, but sometimes the lawyers may be right. When I hear statistical or scientific testimony in some cases, I am glad that eight citizens were spared the task of trying to understand what I have had to learn. There was a famous story of a patent jury trial in California, where the jury sat for a year on one lengthy case. When they reached the verdict, they were asked, “How did you do it?” The response: “Oh, we didn’t understand any of the scientific evidence. We just knew which expert we liked better.”
Judges also find facts in pretrial proceedings and some post-trial proceedings. The most common pretrial proceedings are suppression hearings.Another pretrial proceeding is the Markman hearing, which is used to construe claims in patent cases.Sentencing hearings in criminal cases also often require extensive fact-finding. For example, in a fraud case, judges must calculate the loss amount—this can be very fact-intensive. Sometimes sentencing hearings last for days. Defendants may also request a Fatico hearing to resolve a disputed issue of fact.
Fact-finding also occurs when a party seeks only equitable relief, such as injunctive relief; or seeks an equitable remedy, such as disgorgement; or when there is an equitable defense, such as laches. Thus, even though there may be a jury trial on the legal claims, the judge will have to address the equitable claims and defenses following the jury’s verdict.
I next turn to how a record is created to allow for judicial fact-finding. The first question is how is evidence gathered? Before I answer this question, I note that access to full and robust discovery from the adversary and from nonparties creates the record that can support a claim or defense and lead to real change—if you do not have that robust discovery, there is no record. Without the ability to obtain full discovery, the “private attorney general” concept of citizens enforcing public rights in diverse areas such as antitrust, employment, securities, and civil rights—and that is what we have in this country—would die.
Thus, the permissible scope of discovery is critical. Broad discovery has always been the bedrock of our system of civil litigation. In recent years, there has been a real push by large organizations to cut back on the scope of discovery.Rule 26(b)(1) of the Federal Rules of Civil Procedure, which governs the scope of discovery,was revised in 2000 to eliminate discovery as to the subject matter of the litigation, except upon a showing of good cause.Presumptively, discovery became limited to claims and defenses, and a party could only get discovery as to the subject matter of the litigation upon a showing of good cause.
But that was not the end. A proposed amendment to Rule 26 seeks to further limit the scope of discovery in two ways: (1) it eliminates any possibility of discovery regarding the subject matter of the case even on a showing of good cause; but, more importantly, (2) instead of defining what is discoverable as that which is relevant, it is now going to be defined as that which is relevant and proportional, in effect creating a new definition of scope to be defined by a detailed five-factor test.And the burden to show that the discovery sought is both relevant and proportional will be on the requesting party—most often the plaintiff.Thus, the bar plaintiffs must reach to obtain the evidence, which becomes the record on which judges do fact-finding, is raised even higher. . . . Full Article.
Recommended Citation: Shira A. Scheindlin, Judicial Fact Findings and the Trial Court Judge, 69 U. Miami L. Rev. 367 (2015).
