So here is my report from the Judicial Conference of the District of Maine, held at the Samoset Oct. 21-22.
The substantive part of the program started with the Local Rules Advisory Committee holding an open forum on Rule 56. So the neverending saga of what to do about summary judgment motions continues. There was high attendance by lawyers, and good participation, with opinions all over the map. The consensus appears to be that there is a perception of abuse, revolving around the point-counterpoint of the statements of material facts: they shouldn't be the size of a phone book.
Brett Baber noted that everyone seems to do just fine with the narrative structure of an appellate brief, with cites to the record, so why have any SMFs at all? While that would certainly be delightful for appellate lawyers — the more briefing at the trial level is like an appeal, the more attractive to them – there are, of course, at least two differences. In an appeal (1) there are SMFs in the cited record; and (2) judicial intervention, pinpointing the issues, has already occurred. But more generally, in trying to fix flaws, we need to avoid repeating history. In the beginning, there were no SMFs. Who wanted them? My guess is the judges, to make it easier on them to identify the issues. And if you don't have SMFs, what will happen? The clerks – if the judges have them – will have to do the equivalent of drafting SMFs themselves to identify the disputes of material fact. SMFs were invented for a reason, and if you just eliminate them, you could return to square one.
If eliminating SMFs entirely isn't the answer, what is? The Committee listed some of the approaches from other jurisdictions, which are basically limiting the number of paragraphs or pages or words (absent permission to enlarge), or having pre-filing conferences. Making the parties try to stipulate to undisputed facts first is also raised as a possible solution. But one potential problem with all these approaches is that it might end up making more work, not less, for judges and lawyers, and more costs for the clients.
So good luck to the committee (and the state counterparts) looking at this issue.
The rest of the group presentations were devoted to social media issues. Judge McKeown of the Ninth Circuit in particular gave a great presentation and moderated a panel on this topic. (One of her claims to fame is an award as a "cool woman" from the Girl Scouts of America, and I can see why.)
Here is my takeaway – getting on Facebook is fraught with peril. But more and more, this is how people communicate. So if you bow to the inevitable, you should be very careful about your privacy settings and then, no matter how private you think you've managed to navigate your settings, you still should not say anything that you don't want to see attached as an exhibit to a motion by an adverse party or otherwise seen by the world at any point in the limitless future.
These electronic means of communication aren't of course limited to Facebook. What about blogs and Twitters? My personal test for blog content is what is permissible in a law review article. The issue was raised whether these types of communications can constitute advertising or improper communications. Everything, of course, depends on content – but if that content looks and quacks like a law review article accessible by the world (albeit with no footnotes and a much more informal presentation), then it seems ok to me. Obviously, as with Facebook and Twitter, there are problems to avoid, but as Judge McKeown pointed out, there is nothing really qualitatively new about electronic media. Sure, there is broader potential access and difficulty in expunging. But people have communicated with each other for a long time, and used different mechanisms for doing so, and the same rules that have been developed previously adhere – the difference is in kind, not degree.
Finally, there were some breakout sessions. I attended the one on e-discovery, moderated by our own Gigi Sanchez. This is another issue, like summary judgment, where the ultimate problem, really, is the same - costs. (Then again, what isn't related to cost?)
How do you fulfill your discovery responsibilities without devoting your life to this and breaking the bank? (Or making a mistake, despite how careful you are, thus requiring "quick peek" and "clawback" mechanisms.) The session included a very nice summary of the issues and duties, but in the end, like the summary judgment issue, it boils down to a need for reasonable demands and conduct from the parties and their counsel. But if everyone were so reasonable, then there wouldn't be any litigation in the world in the first place, would there?
We have rules of law to guide conduct and minimize and penalize, if not avoid, abuse from irrational conduct. But all these rules come at a cost, making the litigation route more and more expensive. If people can't afford to litigate because the e-discovery costs of defending are too high, no matter how legitimate the defense on the merits, then isn't there something wrong with the system? Justice delayed is justice denied, but so is unafforable justice.
In sum, if everyone were reasonable and polite, we would have no problems with any of these topics – summary judgment, media or e-discovery – but we'd have no problems in the first place to litigate, either.
Finally, Judge Hornby also announced the new Charles Harvey award. As his presentation captured so well, if everyone were as civil, gracious and smart as Chuck Harvey was, then we would have that world with no such abuse. The speaker at dinner Thursday night was author Tracy Kidder, who more recently has written about the stellar Dr. Paul Farmer in Haiti and Deogratis, from Burundi – two extraordinary figures standing up to abuse of the most horrific sort – poverty and genocide. So I guess you could say that a very informal organizing theme of the conference was the need for everyone to become better human beings. Amen.