Arthur Miller on the Rise of Premature Termination

New York University Professor Arthur Miller says that federal trial by jury is being eviscerated by big business and the U.S. Supreme Court.

Miller says the Supreme Court “seems to have a thumb on the justice scale favoring defendants that has had significant consequences on access to the courts.”

In a speech delivered to the American Association for Justice’s annual meeting in Chicago last month, Miller said that he’s grown “increasingly concerned about procedural changes that have resulted in the earlier and earlier disposition of litigation, often eviscerating a citizen’s opportunity for a meaningful merit adjudication of his or her grievance.”

Miller calls trial before a jury the “civil litigation gold standard.”

But he says that today “there are hardly any federal civil trials – let alone jury trials.”

“Indeed, a contemporary cliché refers to ‘the vanishing trial,’” Miller said. “Many reasons have been offered, but, in my view, one of the most significant is that judges are terminating cases earlier and earlier. It has been a gradual, almost invisible process.”

The acceleration of case disposition has come about “because courts have erected a sequence of procedural stop signs during the past 25 years,” Miller said.

“It began in 1986 when the Supreme Court decided a trilogy of cases invigorating the summary judgment motion,” Miller said. “Since granting that motion terminates a case before trial, these decisions encourage its more frequent invocation by defendants. And judges, resonating to the Court’s decisions employ summary judgment more frequently. Unfortunately, one fears that judges occasionally have inappropriately resolved trial worthy disputed fact issues or conclusorily characterized cases as ‘implausible,’ thereby disposing of them without trial. If nothing else, the summary judgment motion has become an expensive and time consuming pretrial stopping point with attendant delay, expense, and risk of premature termination.”

Miller says that these pretrial obstacles have created “a veritable feast of procedural opportunities for defendants’ stop signs that generate billable hours.that are being used with increasing — and statistically significant — frequency.”

“Today’s reflexive defense response to a complaint – a motion to dismiss – is akin to that of Pavlov’s dogs to the sound of the dinner bell,” Miller said. “More motions, more delays, more costs, more appeals, and more early and possibly ill-advised dismissals. Let me
suggest that the system is suffering from a significant case of premature termination.”

“Many of the Justices seem singularly concerned about the litigation burdens on corporations and governmental officials,” Miller said. “Shouldn’t we care about the litigation burdens on plaintiffs?”

“Shouldn’t we also care about cases being dismissed prematurely despite obvious information asymmetry?”

“Shouldn’t we care that potentially meritorious cases involving important public and private matters are being deterred from being instituted or are dismissed because of some pretrial procedural stop sign?”

“Shouldn’t we care, for example, that possible antitrust and civil rights and consumer violations and product failures are not being deterred or compensated or that people are being detrimentally affected by improper government action?”

“Don’t all of those impose costs – perhaps unquantifiable ones – on society? What is the cost to society of a potentially meritorious case to enforce an important national policy that is never brought? Yet matters such as these never appear on the cost/benefit balance sheet. It is all lost in the cacophony about abuse, frivolousness, extortion, and expense.”

Miller said that “the time has come to recognize that our civil justice system is in an unbalanced state, and we should try to resurrect the process many of us were proud to practice or teach.”

“There are a myriad of possibilities other than erecting stop signs.”

Miller said that trial lawyers to profession “owe it to the larger community to employ your inventive skills and explore them.”

“Our aspirations should be those that our Founders embedded in the Constitution, that committed us to the rule of law, and that motivated engraving ‘equal justice under law’ on the front of our Supreme Court,” he said. “They should not be to obstruct citizen access to our justice system by constructing a procedural wall of stop signs around our court houses.”

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