FEBRUARY '21 | NEWSLETTER
Letter from CJRI Chair Erwin Chemerinsky and Executive Director Anne Bloom
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Dear Friends of the Civil Justice Research Initiative,
We hope this finds all of you safe and well. It is safe to say this has been a year unlike any other. As was the case with so many other aspects of our lives, in 2020, the Civil Justice Research Initiative was forced to move all of our programming online more or less overnight. We are so grateful to the Berkeley Law staff and to our CJRI supporters for helping us through this time, allowing us to resume our programming quickly and offer new programming addressing the many access to justice challenges of the past year.
In March, we were scrambling to postpone all of our in-person programming. By May, we had teamed up with the Berkeley Law Executive Education “Berkeley Boosts” program to produce a series of short webinars on access to justice issues arising during the pandemic. Our first program featured CJRI Board Members Bob Clifford and Valerie Hans discussing the implications of the pandemic for civil juries and attracted an audience of several hundred scholars, practitioners and judges from all over the world. Later topics ranged from discussions of civil remedies for police brutality and case management during the pandemic to a spotlight on the role of litigation in addressing structural inequality. Thanks to the generous support of the Robert L. Habush endowment, these short webinars are continuing and we were also able to host a full day symposium with the RAND corporation on “Covid-19 and the Courts,” which allowed for more extended discussions among scholars, judges and practitioners of some of the challenges courts and litigants are facing during the pandemic.
In the fall semester, again with support from the Robert L. Habush endowment, we also hosted three new lectures featuring cutting edge research on class actions and juries. And, while the nature of our collaborations has changed considerably, our students and pro bono researchers continued to plough ahead with their research in a number of other areas, including research on civil remedies for gun violence and trauma stemming from racial violence. A complete listing of past and future programming, including videos from past webinars and recently published white papers, can found on the CJRI website.
As we continue to weather the pandemic and the many other challenges that have accompanied it, we are beyond grateful for your support. The Bay area writer Rebecca Solnit has written movingly about the surprising ways in which communities come together in a crisis, not simply rising to the occasion but moving forward to build an even stronger, more resilient community that is even more dedicated to fairness and justice. That has certainly been our experience this year.
Thank you,
Erwin and Anne
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Legal experts explored the unprecedented impact of the COVID-19 pandemic on the civil justice system at the COVID-19 and the Courts Virtual Symposium, hosted by the Civil Justice Research Initiative and the RAND Institute for Civil Justice on October 1st. At this all-day event, prominent judges, lawyers, and academics discussed the wide-ranging effects of COVID-19 on the courts, as well as how civil litigation will progress after the pandemic is over.
The event's first panel focused on how the COVID-19 crisis has had considerable implications on the courts' ability to conduct civil jury trials. Panelists included Valerie Hans of Cornell Law School, Robert A. Clifford of Clifford Law Offices, Arturo J. González of Morrison & Foerster, and Judge Carolyn Kuhl of the Los Angeles County Superior Court. Moderated by Richard Jolly of Susman Godfrey, the panelists discussed possible logistical issues affecting trials, the challenges of achieving a diverse and equitable jury pool, and how the civil justice system is responding to the pandemic. Judge Kuhl described some of the logistical challenges in holding in-person jury trials that comply with COVID-19 restrictions. To safely move cases forward during this time, some courts are adapting by enforcing mask and social distancing requirements for jurors, installing glass partitions, and limiting the amount of people allowed in the audience. Other courts have moved entirely to a virtual format — for example, an Alameda Superior Court trial in August was conducted entirely over the video conferencing platform Zoom, with jury deliberations held in Zoom breakout rooms. The panelists also examined the impacts of COVID-era trials on jury diversity, since virtual trials disadvantage potential jurors who do not have access to technology or consistent WiFi.
The second panel, moderated by Judge Jeremy Fogel of the Berkeley Judicial Institute, considered the effects of the pandemic on pre-trial case management. The panelists discussed the delay that the pandemic has caused for pre-trial proceedings, as well as how certain courts may be better equipped to handle pre-trial case management than others during these times because of disparities in technology and facilities. Judge Sandra Perlman of the Seventeenth Judicial Circuit in Florida remarked that "remote court is here to stay," especially for pre-trial proceedings where it may not seem as imperative to physically be in the courtroom. The other speakers on the panel were Janet Abaray of Burg Simpson, Charles Lifland of O'Melveny & Myers, and Scott Dodson of UC Hastings College of the Law.
The third panel of the event examined potential changes to federal and state civil rules as a consequence of the disruption created by COVID-19. This panel consisted of Andrew Bradt of UC Berkeley School of Law, Richard Marcus of UC Hastings College of the Law, Robert J. Giuffra Jr. of Sullivan & Cromwell, and Tara Sutton of Robins Kaplan, and was moderated by Jocelyn Larkin of the Impact Fund. Panelists explored proposals to modify the rules of federal and state court systems, such as eliminating the requirement of in-person contact where it may be unnecessary, using electronic mail to deliver summons and complaints, and providing remote public access to court proceedings. The panelists also offered insights on possible strategies that courts can implement in response to these rules, as well as what implications potential rule changes will have on the resolution of civil disputes.
The symposium's final panel addressed the future of civil litigation in a post-pandemic world. Panelists included Paula Hannaford-Agor of the Center for Jury Studies, Stephan J. Herman of Herman Herman & Katz, Donna Melby of Paul Hastings, and Chief Justice Bridget Mary McCormack of the Supreme Court of Michigan. The discussion was moderated by Nicholas M. Pace of the RAND corporation. The panel focused on how civil litigaton will progress after COVID-19 is no longer a significant concern, and whether some of the adaptations and restrictions imposed on the civil justice system will remain after the pandemic is over. Panelists discussed how to address civil cases and filings that have been delayed due to backlogs caused by the pandemic, and how to ensure access to justice for all people involved in the civil justice system when the pandemic ends. Additionally, panelists considered whether the COVID-19 pandemic inadvertently poses a unique opportunity to make civil litigation less expensive and more efficient and equitable. Chief Justice McCormack remarked that the legal industry has long resisted modernization, with courtroom proceedings looking relatively similar to the way they did a hundred years ago, but the pandemic has finally forced the legal profession to embrace technology and adapt to online platforms.
Erwin Chemerinsky, Dean of UC Berkeley School of Law and Chair of the Civil Justice Research Initiative, provided the concluding remarks for the symposium. "Although these are extremely challenging times, many of our panelists were hopeful that we can use this moment as an opportunity for lasting, constructive change," said Chemerinsky. "If this moment can be a time for expanding access to justice, and if those reforms for access to justice are truly lasting, then something good may be able to come out of what is otherwise a tragedy."
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Pictured: (left to right)
Richard Jolly | Buckley LLP
Professor Justin Levitt | Loyola Law
Kristen Clarke | Resident and Executive Director of the National Lawyers' Committee for Civil Rights Under Law
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CIVIL REMEDIES FOR VOTING RIGHTS VIOLATIONS
VIA ZOOM | DECEMBER 4, 2020
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As part of an ongoing 30-minute series, part of Berkeley Boosts, the CJRI is hosting a selection of webinars on civil legal issues during Covid-19. This webinar discussed civil remedies for voting rights violations. Speakers included Professor Justin Levitt, Loyola Law, and Kristen Clarke, President & Executive Director of the National Lawyers’ Committee for Civil Rights Under Law. The program took place on Friday, December 4th at 10 a.m. Pacific Time, via Zoom. This event was supported by a generous gift from the Robert L. Habush Endowment.
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ATTACKS ON THE JUDICIARY
VIA ZOOM | NOVEMBER 13, 2020
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As part of an ongoing 30-minute series, part of Berkeley Boosts, the CJRI is hosting a selection of webinars on civil legal issues during Covid-19. This webinar discussed the implications of recent attacks on the judiciary. Speakers included James J. Brosnahan, Morrison & Foerster and Denyse Clancy, Kazan, McClain, Satterley & Greenwood. This event was supported by a generous gift from the Robert L. Habush Endowment.
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Pictured: Denyse Clancy | Partner, Kazan Law |
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Pictured: Professor Valerie Hans | Cornell Law |
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DECIDING ON DOLLARS
VIA ZOOM | OCTOBER 30, 2020
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Legal systems often require the translation of qualitative assessments into quantitative judgments, yet the conversion process can be challenging. Civil jurors report that arriving at damage awards that are commensurate with a plaintiff’s injuries is one of the most difficult aspects of their decision making. Professor Hans presented recent experimental and survey research that helps us to better understand the process by which jurors move from qualitative judgments about the severity of an injury to quantitative decisions about money damage awards. This event was supported by a generous gift from the Robert L. Habush Endowment.
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THE EFFECTS OF IDEOLOGY, RACE AND GENDER ON CLASS CERTIFICATION DECISIONS
VIA ZOOM | OCTOBER 16, 2020
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Professors Burbank (Penn Law) and Farhang (Berkeley Law) presented their research on the effects of ideology, race and gender on the voting behavior of Federal Court of Appeals judges when members of three-judge panels decide issues of class certification. This event was supported by a generous gift from the Robert L. Habush Endowment.
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Pictured: Professor Sean Farhang | Berkeley Law |
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Pictured: Judge Sandra Perlman | Seventeenth Judicial Circuit, Broward County, Florida |
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GUN VIOLENCE LITIGATION SYMPOSIUM
VIA ZOOM | OCTOBER 1, 2020
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This all-day virtual symposium featured discussions among practitioners, scholars, and judges on some of the key issues that have arisen during the pandemic in regard to resolving civil disputes, such as meeting the challenges of civil jury trials and pre-trial management in the era of social distancing, developing effective court rules to address a rapidly changing legal environment, and preparing for what the future may hold. This event was supported by a generous gift from the Robert L. Habush Endowment.
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STEPHEN B. BURBANK & SEAN FARHANG
April 2020
The Federal Rules of Civil Procedure effectively determine access to court and likelihood of success in court for those seeking to enforce federal rights through litigation. This white paper focuses on the Advisory Committee on Civil Rules, which has primary responsibility for drafting the Federal Rules, under Chief Justice Warren Burger and his successors.
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