By Sandy Eloranto
*Published in the FFA newsletter and reprinted with the FFA’s permission

On September 30, 2016, United States Magistrate Judge Kristen L. Mix discussed current federal litigation trends in a continuing legal education presentation sponsored by the FFA.  She discussed underlying social, demographic, and economic factors that impact the current litigation climate in the U.S.  She noted instances of tension and struggle for authority between branches of the federal government as well as between the federal and state governments, from a federal judge’s criticism of judicial deference to long-recognized executive agency authority to interpret ambiguous statutory language, to a state supreme court justice’s order to his subordinates not to comply with the same-sex marriage decision issued by the Supreme Court.  Magistrate Judge Mix described our legal system as the best in the world, but acknowledged it is not without imperfections.  She raised a number of thought-provoking “hot topics” in federal court litigation.

Hot Topic #1: Transparency
Magistrate Judge Mix raised a number of questions about transparency that do not have answers.  How much transparency is needed to ensure that power is being used appropriately?  Should a party be able to seal company documents that would otherwise be confidential, or does the public have the right to see confidential information simply because a suit has been filed?  Should the fact that a third party is financing litigation be disclosed, and are the financer’s motives relevant?  How much information should the government be required to disclose about its surveillance of U.S. citizens?  All of these issues raise important concerns about transparency.

Hot Topic #2: Law Enforcement and the Fourth Amendment
Judicial opinions are acknowledging the prevalence of racial profiling.  The Massachusetts Supreme Judicial Court ordered trial courts to consider a Boston Police Department report on racial profiling incidence rates when deciding whether a black defendant’s flight from police constitutes reasonable suspicion to stop him or her, although the report had not been offered as evidence in the case.  A juror in a Colorado state court case who was a former law enforcement officer made racially discriminatory comments during deliberations, raising post-trial issues about the validity of the verdict. The Colorado Supreme Court held that the sanctity of jury deliberations precluded judicial interference in the verdict.  The case was argued in the United States Supreme Court in October.

Hot Topic #3: Criminal Justice System
A federal judge issued a light probationary sentence to a defendant convicted of a drug crime on his last day on the bench, acknowledging in a long written opinion that the sentence was largely driven by the collateral consequences of a felony conviction, which impacts the ability to get a job and eligibility for social security benefits, student loans, and serving in the military.  The U.S. has only 5% of the world’s population but houses 22% of the world’s prison inmates.  Death penalty cases are becoming more controversial as prison officials speak out about the trauma caused by having to participate in executions.  Limited financial and judicial resources make death penalty cases difficult, expensive and time-consuming to bring through the criminal justice system.

Hot Topic #4: Mechanics of Trials
Recent studies show improvements in courtroom technology, and that PowerPoints and animation videos are actually putting jurors to sleep. Technology failures can have devastating results.  Lawyers cannot get trial experience unless cases go to trial – but the litigation system makes it expensive and time-consuming to get all the way to trial, and the lack of experienced trial attorneys is a significant problem.

Hot Topic #5: Junk Science and New Science
A recent scientific and technology advisory council report to the President – which will likely be used as a roadmap by defense attorneys to challenge forensic evidence – argues that the methods used to analyze DNA and forensic evidence are unreliable. The report claims laboratories testing hair, fingerprints, firearms, toolmarks, bitemarks, shoeprints, tire tracks, handwriting, and other forensic evidence lack testing standards, training protocols, and independence from law enforcement, which are essential to ensuring reliability of the results.  Also, developments in the medical field relating to brain scans have led to increased attempts to use that evidence to prove behavior or motive, as well as an increased number of reliability objections to the evidence.

Hot Topic #6:  Jurors and Social Media
What happens when a jury doesn’t reflect the racial diversity of the community from which it is drawn?  How much social media research, including from Facebook and LinkedIn, should be used during the jury selection process, and how much should jurors be told about the methods and results of that research?

Hot Topic #7:  Stress on the Legal System
The current cost of a legal education and the rate of lawyer job dissatisfaction add stress to the system.  Congress is gridlocked as members appear to focus more on reelection than on passing legislation, leaving difficult social decisions to federal judges who are appointed for life but are not elected representatives of the people.  In addition, federal judges in Colorado and elsewhere are dealing with increasing caseloads and judicial vacancies which strain resources.  Public scrutiny and criticism of judges by lawyers, politicians, the press, and citizens is increasing at an alarming rate as social media explodes.  The ninth Supreme Court seat remains vacant, perhaps impacting the number and types of cases the Court accepts and whether the Court can fully resolve underlying disputes rather than remanding them to lower courts with limited directions.  Allegations of prosecutorial misconduct are on the rise.  Pro se cases already tax the system, and proposed changes to forfeiture and arbitration laws would flood the courts with additional cases.  The Supreme Court recently upheld a decision to recall a jury which had been dismissed but had not yet left the courthouse, due to the significant cost of retrying the case.

In closing, Magistrate Judge Mix again complimented our country’s legal system, calling it the best such system on earth – and acknowledged our collective responsibility to keep trying to make it better.