National Civil Justice Institute

2023 judges forum: expert testimony: judges, voir dire, and trial by jury. This 31st annual judges forum was held in person july 15, 2023 in philadelphia, Pennsylvania. 81 judges, academics, and attorneys from 29 states and the district of columbia learned about the unique nature of scientific evidence in american Civil Justice, and considered whether moderating the role of judges as evidence gatekeepers would be beneficial for courts and for the american legal and political system as a whole. The conversations were framed by outstanding papers: "expert evidence: evolution of rules and practices" by prof. michael saks (asu); and "judicial gatekeeping, expert testimony and perceptions of courts" by prof. anne bloom (berkeley). Judges enjoyed insightful comments by panels of lawyers, judges, and professors, and engaged with each other during small group discussions. During lunch, joyce and jason daubert discussed their litigation journey which ultimately led to the implementation of a legal evidence standard bearing their name. Attending judges gave the forum an overall rating of 4.8 out of 5.

The Institute's 2023 appellate advocacy award was presented to attorneys who have been instrumental in securing final appellate court decisions with significant impact on the right to trial by jury, public health and safety, consumer rights, Civil rights, and more. The 2023 award was presented-for the first time in the award's history-to attorneys in two very deserving victories: karla gilbride and leah nicholls (then both of public Justice) for morgan v. sundance, 142 s. ct. 1708 (2022), representing a major forced arbitration win before the u.s. supreme court; and timothy billion of robins kaplan llp for rosebud sioux tribe v. united states, 9 f.4th 1018 (8th cir. 2021), in a crucial tribal rights victory. Morgan v. sundance: in recent years the u.s. supreme court has promoted the mechanism of arbitration over litigation and expanding the reach of the federal arbitration act, with disastrous results for consumers, workers, and others who need to pursue legal remedies in court. Many, if not most, modern commercial transactions and employment contracts include mandatory arbitration clauses that make it extremely difficult for individual consumers or workers to obtain meaningful redress, because the larger corporate party can usually dictate its own terms. When robyn morgan was hired as an hourly employee at a taco bell restaurant owned by sundance, inc., she was required to sign an agreement to arbitrate any employment dispute. Nevertheless, when she believed that sundance was violating applicable law with respect to overtime pay, she filed a nationwide collective action against the company under the fair labor standards act (flsa). After eight months of litigation, during which sundance sought dismissal and participated in unsuccessful mediation, the company moved to compel arbitration under the federal arbitration act (faa). Its motion was denied by the district court, but, on sundance's appeal, the united states court of appeals for the eighth circuit reversed and remanded. Represented by karla gilbride and leah nicholls, ms. morgan took her case to the u.s. supreme court. Morgan argued that, by litigating for too long, sundance had waived its right to compel arbitration. Sundance argued that its delay in seeking arbitration had not prejudiced the plaintiff, and that it was entitled to arbitrate. In morgan v. sundance, inc., 142 s. ct. 1708 (2022), the supreme court unanimously vacated and remanded. In an opinion by Justice kagan, the court held that prejudice is not a condition for finding that a party, by litigating too long, waived its right to stay litigation or compel arbitration. The supreme court's decision overruled the 8th circuit and eight other circuits that had embraced arbitration-specific waiver rules requiring a showing of prejudice to the non-waiving party. This holding makes it easier for claimants to show that a defendant has waived a right to compel arbitration by participating substantially in litigation without regard to whether such participation has prejudiced the claimant. Rosebud sioux tribe v. united states: timothy billion of robins kaplan llp in minneapolis, mn led a pro bono effort on behalf of the rosebud sioux indian tribe to remedy historically inadequate healthcare for tribe's members and secure quality care in the future. He used the innovative vehicle of a complaint for a declaratory judgment that the 1868 treaty of fort laramie, the snyder act, the indian health care improvement act (ihcia), and federal common law, required the government to provide competent physician-led healthcare to the tribe and its members, and to ensure that the health care services provided did not fall below highest possible standards of professional care. Represented by mr. billion, the tribe obtained a partial summary judgment in the u. s. district court for the district of south dakota, and the government appealed. In rosebud sioux tribe v. united states, 9 f.4th 1018 (8th cir. 2021), the u.s. court of appeals for the eighth circuit affirmed the summary judgment in favor of the tribe, holding that the united states had a duty to provide competent health care to the tribe and its members, and that the duty to provide such "competent physician-led health care" was sufficiently concrete and specific. Timothy billion and his team engaged in brilliant advocacy in pursuit of a noble goal and secured an outstanding result.

2023 academic symposium on substantive due process. On march 31-april 1, 2023, ncji partnered with the smu dedman school of law in presenting an academic symposium, the future of substantive due process: what are the stakes? The 2-day conference was held at smu in dallas, tx and featured 10 original academic papers addressing a variety of topics relating to substantive due process rights: the rights to academic freedom, travel, and end-of-life care; the role of state courts and constitutions; secrecy and transparency in sdp litigation; challenges in Civil rights litigation; gender and reproductive issues; the importance of sdp to our democracy; and the Civil right to counsel. Dean erwin chemerinsky (berkeley law) delivered the keynote address, and an outstanding faculty led provocative discussions on these important issues. The audience consisted of judges and law professors from across the country, law students, attorneys, non-profit professionals, court clerks, and government officials. The final papers will be published in the fall 2023 issue of the smu law review.

Ncji awarded its Civil Justice scholarship award to one book and one article and recognized a second article for high distinction. Professor benjamin zipursky of fordham law school and professor john c.p. Goldberg of harvard law school are recognized for their book "recognizing wrongs" (harvard university press, 2020), in which they explain how their "Civil recourse" concept makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity. Professor diego a. zambrano of stanford law school is recognized for his article, "federal expansion and the decay of state courts", 86 u. chi. L. rev. 2101 (2019), in which he explores how federal expansion may be contributing to the decay of state courts and has reinforced a plaintiff- defendant divergence between the two systems. High distinction goes to professor jonathan cardi (wake forest university school of law), professor valerie hans (cornell law school), and professor gregory parks (wake forest university school of law) for their article, "do black injuries matter? : implicit bias and jury decision making in tort cases", 93 so. Cal. L. rev. 507 (2020). After conducting one of the first comprehensive experimental examinations of how race affects judgments on personal injuries, the authors found that the dollar awards for the injuries suffered by black plaintiffs in hypothetical cases were lower than awards for the same injuries experienced by white plaintiffs. Professors goldberg, zambrano, and zipursky received their awards at the ncji fellows reception on sunday, february 5, 2023 in phoenix, az.