Amicus Curiae Brief — Colgrove v. Battin

TABLE OF CONTENTS.

———

Table of Authorities

I. The Civil Jury System Should Be Preserved in

Al Basic Essentials - and Any Significant

_ Changes in It Should Be Made Only by Legisla-

tion or Amendment of the Federal Rules of

Civil Procedure

II. The Instant Six Member Jury Rule Is a ‘‘Basic

~ Procedural Innovation, Beyond the Rule-

Making Power of a Federal District Court

Under the Doctrine of Miner v. Atlass

| 7h Majer, Procedural Changes n Be Bo.

viewed by the Judicial Conference and Re-

ported to Congress, as in the Case of

Amendments to the Federal Rules.

Comments of the Draftsmen of the Federal

_,. Bules of Civil Procedure Show That the

5 Purpose of Rule 83 Was to Enable District

_ Courts to Make Limited Local Rules in

= + >>> Interstitial, Areas.

I To Out in Half the Traditional Size of Juries

Is a Basie Procedural Innovation of No

| Small, Consequence |

IV. The Theory That District Courts Are Free to

2 Local Rule the Size of Civil Juries Con-

flicts with the Policy of the Jury Selection Stat

.. — * *

The Instant Six Member Jury Rule Is Incon-

sistent with Rule 48 of the Federal Rules of Civil

‘Procedure, Permitting Reductions in the Size of

Juries by Stipulation Only. :

D f

Taste or AUTHORITIES.

Cases.

Allen Forwarding Co. v. United States, 340 Fed. Supp.

412 (1972)

Bourne v. A. T. & S. F. Ry. Co., Supreme Ct. Kans, No.

46,627 (1972)

Capital Traction Company v. Hof, 174 U. S. 1, 19 S. Ct.,

580, 43 L. Ed. 873 (1899)

Colgrove v. Battin, 456 F. 2d 1379 (9th Cir., 1972)...

JJ ⁵¼d¶ͥůö(0 8 20, 21, 22, 3

Cooley v. Strickland Transportation Company, 459 F.

2d 779 (5th Cir., 1972) 20, 21, 22, 23,

Farmer v. Arabian American Oil Company, 285 F. 2d

720 (2d Cir., 1960)

Federal Maritime Commission v. Anglo-Canadian

Shipping Co., 335 F. 2d 255 (9th Cir., 1964)

First National City Bank of New York v. Aristeguieta,

287 F. 2d 219 (2d Cir., 1960)

Fitzgerald, Public Administrator v. United States

Lines Co., 374 U. S. 16, 83 S. Ct. 1646, 10 L. Ed. 2d

725 (1963)

Fox v. United States, 417 F. 2d 84 (5th Cir., 1969)

Gamble v. Pope & Talbot, Inc., 307 F. 2d 729 (3d Cir.,

Goldlawr, Inc. v. Heiman, 369 U. S. 463, 82 S. Ot. 913,

8 L. Ed. 2d 39 (1962)

Harris v. Nelson, 394 U. S. 286, 89 8. es

24 281 (1969)

Levy ¥. Lawnmaster, Inc. (7th Cir. No. 72.1171, 1972).

7

iii

Louisville Builders Supply Company v. Commissioner,

204 F, 2d 333 (6th Cir., 196117 9

Miner v. Atlass, 363 U. S. 641, 80 S. Ct. 1300, 4 L. Ed.

b 2, 5, 6, 7, 8, 9, 10, 13, 19

Mississippi Publishing Corp v. Murphree, 326 U. S.

h ↄ ( ³˙-AmmAm ̃ T; w!-Jͤ 10, 16

Sea Trade Corporation v. Bethlehem Steel Company,

Shipbuilding Division, 1 Fed. Supp. 913 (S. Dist.

N. . uo 10

Socony Mobil Oil Company, Inc. v. The S. S. Pacific

Tide, 189 Fed. Supp. 724 (S. Dist. N. Mig IDGOYs:. 635% 10

Weather-Rite Sportswear Co. v. U. S., 298 Fed. Supp.

508 (1969) ........ 1710 ee Re

Williams v. Florida, 399 U. S. 78 (1970). .4, 13, 14, 22, 23, 24

Winsby v. John Oster Manufacturing Company, 336

Fed. Supp. 663 (W. D. Pa., 1972).............. 18, 20, 24

Wirtz v. Hooper-Holmes Bureau, Inc., 327 F. 2d 939

e Cir., 586). J ee 10

Statutes.

eee iidik A 6k ati es 23, 24

—AHV0¹w»»˙ ͥd ̃̃ wũa & 5

. A]³ðêti n 7 7˙1˙ · A undead 4,7

——W· ˙·—weꝛ 4, 14, 17

5 U. J / Ä. 17

* v 8. 0%Jſhh.. el 2 hone 19, 21

7800 (W. L. Scott, 92d Cong.) 5

3,496 (E. Celler, 92d Cong.) 5

General Admiralty Rule 44.

ene . Te Eee cs oe 10

Rule 26, F. B. Civ. Pro ꝝꝛ - 6

Rule 48, F. R. Civ. Pro. 19, 20, 21, 22, 23

Rule 83 F. R. Civ. Pro 6, 8, 10, 11, 12, 16, 17,

Bale 18(d)(2), Dist. Mont...: 2.05005 660csrceen- es 20, A

ee WR ẽ ·—w‚· ee A

Rule 13, W. Dist. Louisiana ids A dk die 19, 20, 21

Other Authorities.

A. B. A., Federal Bules of Civil Procedure, Proceed-

ings of the Institute at Washington and of the Sym-

posium at New York City (1938 ))) 11,12

3A Barron and Holtzoff, Federal Practice and Proce-

dure (Rules Hd. 1958), 5 1711. 8, 9,1

3 Benedict, Admiralty (Knauth ed.), 34...

IV Blackstone’s Commentaries (11th Ed. 1791) 25

Bogue and Frits, The Six-Man Jury, 17 8. Dak. I. Rev

% ⁵ ⁵⁵ 8 15

C. Chestnut, Analysis of Proposed New Federal Rules

of Civil Procedure, 22 A. B. A. J. 533 (Aug. 1936).

a i RS at CATER

Columb. L. Rev. 1251 (Nov. 67) . 11, 12, 13,8

Devitt, The Sir. Man Jury in the Federal Court, 53

_ FRD 273 (1971) TTT! v *: un

Gibbons, The New Minijuries: Panacea or Pandoras

Box? 58 ABAJ 594 (June, 1972) 1 16, 21,

H. Kalven, Jr, The Jury, the Law and the Personal

Injury Damage Award, 19 Ohio St. L. J. 158 (1958)

v

. The American Jury votes Brown and

Maris, Federal Procedural Rule-Making: The Program

of the Judicial Conference, 47 A. B. A. J. 772 (Aug.,

The Local Rules of Civil Procedure in the Federal Dis-

trict Courts—a Survey, 1966 Duke L. J. 1011

Zeisel, And Then There Were - None: The Diminution

of the Federal Jury, 38 U. Chi. L. Rev. 710 (Summer

Zeisel, The Waning of the American Jury, 58 A.B. A. J.

367 (April 72)

IN THE

— Court of the United States

Ocrosrer Trem, 1972.

No. 71-1442.

ROLAND v. COLGROVE,

Petitioner,

against

HONORABLE JAMES F. BATTIN, Unrrep Srares Dis-

mor JUDGE FOR THE District or Montana, Bnauxos

3 Respondent.

Civil No. 783.

ROLAND v. COLGROVE,

Plaintiff,

vs.

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

Defendant.

"BRIEF OF INTERNATIONAL ASSOCIATION OF

_ INSURANCE COUNSEL AS AMICUS CURIAE.

—

SUMMARY OF ARGUMENT.

me instant six- member jury rule and all similar local

jury rules of the federal District Courts are beyond the

limited rule-making power of the District Courts for the

owing reasons. (1) They represent “‘basic procedural in-

novations which are forbidden to District Courts under th

doctrine of Miner v. Atlass, 363 U. 8. 641 (1960). (2) The

substaitially decrende thé (eliances of representation of i

nority viewpoints on the jury and substantially increas

the risk of what might be termed “far-out”’ verdicts. (3)

They frustrate the policy of the jury selection statutes tt

maximize the chances of obtaining juries representative d

a ‘‘fair cross section“ of the community and the policy o.

the peremptory challenge statute that not more than one.

half of a jury may be unseated by peremptory challenges,

(4) They conflict with the express grant of authority to

the parties under Rule 48, F. R. Civ. Pro., to stipulate to

‘a lar larger-or smaller than six members. (5) They con

fictwith the intent, implicit in Rule 48, that a stipulation

of the parties should be the sole means of reducing ‘the

jury to less than twelve members. (6) These local jury rules,

in their diversity, create a ‘*procedural Tower of Babel“

in a field of federal jurisdiction where nationwide uni

formity has traditionally always been highly esteemed”’."*

"See Footnote 21, infra. vi

% Miner, v. Allass, 363 U. g. 641, 649 (1960).

ARGUMENT.

OF THE FEDERAL RULES OF

“International Association of Insurance Counsel! wishes

to express its appreciation to the Court and to the parties

for the opportunity to submit a brief amicus curiae in this

It is planned to leave to able counsel for the parties

discussion of the important constitutional and statutory

points in this case, while limiting this brief to a single

issue of prime concern to the I. A. I. C. membership: the

scope of the rule-making power of United States District

Courts, as applied to the instant six member jury rule.

To say that two thousand trial lawyers, as diversified in

background and experience as the members of this Asso-

dation, do not speak with a single voice, is to put it mildly.

We venture to predict, nevertheless, that an overwhelming

Majority of our members would agree upon three proposi-

75 N

1 . Tae

n

=

International Association of Insurance Counsel (I. A. I. C.)

posed of more than two thousand insurance defense counsel

duse counsel and independent trial counsel) in all parts of

ted States and Canada. Membership includes lawyers from

ommunities and small, large firms and small, trial spe-

d general ee lawyers whose practice is vir-

fined to work, and lawyers who occasionally find

sitting at the plaintiff’s bar.

4

(1) Constitutional requirements aside, our jury

system in all important essentials should be ren

for civil, as well as criminal, trials.“

(2) To the extent possible, without eee

upon its essenee, our jury system should be sufficiently

flexible to permit its adaptation to the needs of chang.

ing times.

(3) Basie trial and appellate procedures should ap-

ply uniformly throughout the federal court system, and

fundamental al changes, as rules which

cut in half the traditional twelve-member common lay

jury, should not be adopted without the kind of wide.

spread and thorough consideration which attends the

amendment of the Federal Rules of Civil Procedure;

2. The supporters of the jury system tend to share these per.

ceptions: (i) They are skeptical of the ability of any one man or

judge, however gifted, to form his judgments in the cool light of

reason, unswayed by predeliction, passion or prejudice. (ii) They

do not share Herbert Spencer’s contempt for the ‘‘twelve people

of average ignorance’ (Kalven & Zeisel, The American Jury

[Little Brown and Company, 1966] p. 6). (iii) They recognim

that the intelligence and sensibility required of jurors is not the

product of book-found knowledge, but the wisdom born of human

i and the compassion born of human suffering. (iv) They

have not infrequently perceived in the collective verdict of juris

a keen eye for truth, a sensitive nose for fraud or sham, a voice of

moderation and an instinctive sense of right and wrong, which i

the measuring stick of justice. Are not these the perceptions on

which we have staked our very system of government!

3. If it be conceded, as declared in Williams v. Florida, 39

U. S. 78 (1970), that fixing the number of jurors at twelve was an

historical accident, ‘‘wholly without significance except to mys

ties (399 U. S. p. 102), it remains true, nevertheless, that the

enough managea

None: The Diminution of the Federal Jury, 38 U. Chi. L. Rev.

710, 712 (Summer 71). Cp. 28 U. S. C. 8 1861, a must be

selected from n fair cross-section of the communi N

4. See 28 U. S. C. §331, enjoining the Judicial Correa

‘‘earry on a continuous study of the operation and effect of the

general rules of practice and procedure, and 28 U. S. C 6. 62075

e eee by general ale

5

SRE SY:

SIX MEMBER JURY RULE IS A “BASIC

DUR INNOVATION,” BEYOND THE RULE.

MAKING POWER OF A FEDERAL DISTRICT COURT

UNDER THE DOCTRINE OF MINER „ ATLASS.

A. Major Procedural Changes Should Be Reviewed by the

Judicial Conference and Reported to Congress, as in

the Case of Amendments to the Federal Rules.

im Miner v. Atlass, 363 U. S. 641, 80 S. Ot. 1300, 4 L. Ed.

20 1462 (1960), „basie procedural innovations“ (363 U. 8.

p. 650) were held to be beyond the scope of the rule-making

pow. of a federal district court.

Unlike the case at bar, Miner arose out of an admiralty

suit and dealt with a local District Court rule, authorizing

oral discovery depositions in admiralty. Both Miner and

the case at bar, however, were mandamus suits, Both suits

‘were brought to test the validity of local procedural rules

of United States District Courts. In both cases the pro-

eedural rules in question represented sweeping departures

from long-standing tradition. And in both cases the rules

of general application (General Admiralty Rules and

deral Rules of Civil Procedure, respectively) in similar

extended to District Courts a broad grant of power

the practice and procedure of the district courts of the

i States in civil actions, subject to certain limitations,

jing a duty to report such rules to Congress and to ‘‘pre-

the right of trial by jury as at common law.’’ See also

rt of P. ings of Jud. Conf. of U. 8. 3/15-16/71, pp. 5-6,

ng Resolution in favor of smaller juries, but referring back

littees the question, whether the means should be by ‘‘rule-

r statute’. Two six member jury bills were introduced

0 Congress, H. R. 7800 by W. L. Scott of Virginia and

13,496 by E. Celler of New York. Neither was enacted,

the Justice Department endorsed the Celler bill,

ler v. Atlass, supra, was decided some six years prior to

Tepeal of the separate admiralty rules (80 Stat. 323) and the

eral unification of the civil and admiralty rules of procedure,

ave July 1, 1966.

res

7777 7

ee >

6

to “regulate their practice“ in any manner not incon.

sistent with these [the general] rules.

In a majority opinion, written by the late Mr. Justice

Harlan,’ the Court inferred from the carefully devised

scheme for widespread review before adoption, of rules of

practice and procedure prescribed by the Supreme Court,

a general intention that all basic procedures should be

covered by the Supreme Court rules so formulated, leaving

the interstices to be the subject of appropriate local

regulation (363 U. S. p. 648.) Accordingly, by way of

jndicial gloss, the Court read into the grant of District Court

rule-making power an implicit prohibition’ against the adop-

tion of local rules, constituting ‘‘basic procedural innova-

tions:

„[ITjhe matter is one which, though concededly pro-

cedural,’ may be of as great importance to litigants as

many a ‘substantive’ doctrine, and which arises in a

field of federal jurisdiction where nationwide uni-

formity has traditionally always been highly esteemed.

The problem then is one which peculiarly calls for

exacting observance of the statutory procedures sur-

7. Cp. General Admiralty Rule 44 with Rule 83 F. R. Civ.

Pro. See also 28 U. S. C. § 2071, which confers upon all courts

established by Act of Congress’’ power to ‘‘prescribe rules for the

conduct of their business,’’ consistent with Acts of Congress and

rules of practice and procedure prescribed by the Supreme Court.

8. The majority was composed of six justices: Chief Justice

Warren, and Associate Justices Black, Frankfurter, Clark, Har-

lan and Whittaker.

9. The Court found no express inconsistency r

discovery deposition rule and the General Admiralty Rules. It did

infer from the failure to incorporate into the General Admiralty

Rule 26 F. R. Civ. Pro., authorizing discovery depositions

Phy a deliberate intention 21 to ore the [discovery

88 e District Courts. But it reeognized

that the non- incorporation of Rule 26 F. R. Civ. Pro. does not

necessarily ee an intention to foreelose each Distriet Court

from exercising a ‘local option’ under Rule 44 e

deposition rules.“ (See Miner v. Atlass, supra, 363 U. S. p. 648.

“© rounding the rule-making powers of the Court, see 28

ics | nage gee aa BO S. C. A. 8331 (advisory func-

of J Conference“. ), 28 U. S. C. § 2073, 28

J. 8. C. A. § 2073 (prior report of proposed rule to

Congress), 2 to insure that basic procedural

innovations shall be introduced only after mature con-

sideration of informed opinion from all relevant quart-

185 ere with all the opportunities for comprehensive and in-

treatment which such consideration affords.’’

— 5 v. Atlass, 363 U. S. p. 649-650. (Emphasis sup-

*

es diseentors™ i in Miner, pointing out that ‘‘over half

the admiralty litigation in the federal courts is conducted in

courts having discovery-deposition rules like the one today

nullified,’’ could not agree to ‘‘a judgment which lightly

brings about so widespread a turning back of the clock in

the admiralty practice through the Nation.’’ (363 U. S.

p. 652-653. ) ‘In their view, ‘‘the Court’s opinion fails com-

pletely to demonstrate a lack of power to promulgate the

‘Tule in question (363 U. S. 654) and there is nothing in

General Rule 44 confining the local rulemaking power to

exercises in the trivial.“ (363 U. S. 655.) The dissentors

‘summarized their threefold objections to the majority deci-

sion, as follows (363 U. S. p. 665) :

5 “The Court’s action nullifies these many local ad-

miralty discovery-deposition rules, and casts an un-

certain cloud over other local admiralty and civil rules.

It creates an unfortunate hiatus in the development of

discovery in admiralty by postponing the further col-

lection of practical experience in the matter until a

General Rule can be produced. *

Maris, Federal Procedural Rule-Making: The Pro-

the Judicial Conference, 47 A. B. A. J. 772 (Aug. 1961).

ll. The dissenting opinion was written by Mr. Justice Bren-

joined by Messrs. Justices Douglas and Stewart.

Since this Court handed down its decision in Miner v.

Supra, 363 U. S. 641 (1960), the case has been cited by

only three times. See Goldlawr, Inc. v. randy 369

2

8

8

The principle, announced in Miner v. Atlass; supra, 363

U. S. 641, 650 (1960), that “basic procedural innovations”

are beyond the admiralty rule-making power of a federal

District Court, obviously applies with equal force to a

District Court's civil suit rule-making. power. This is

particularly true, in view of the close similarity: between

the grant of admiralty rule-making authority under General

Admiralty Rule 44 and the grant of civil suit rule-making

authority under Rule 83 of the Federal Rules of Civil

Procedure.” Recognizing that the implications of the

doctrine of Miner v. Atlass extend into the realm of local

civil rule-making, the 1971 Pocket Part of Barron and

Holtzoff’s treatise on Federal Practice and Procedures

includes this warning:

In the light of this decision [Miner v. Atlass, 363 U. 8.

641 (1960)], it is possible that some of the more far.

reaching local rules recently adopted, discussed in

section 1713, may not be valid, 3A. Barron and

Holtzoff, Federal Practice and Procedure [Rules Ed.

1958], 1971 Pocket Part, § 1711 p. 68.

Thus in Farmer v. Arabian American Oil Company, 285

F. 2d 720, 722 [2d Cir. 1960], the court criticized and (as

„aim and admiralty claim for maintenance and

be tried to jury together; Harris v. Nelson, 394 U. 8.

Len 1082, 1094, 22 L. Ed. 2d 281, 295 (1969) bold -

ies a permissible procedure in habeas corpus pro-

ceeding. Each of these citations to Miner was in a dissenting

opinion by Mr. Justice Harlan, in which he suggested that the

Supreme Court, itself, should refrain from adopting what he

regarded as innovative procedures, without first submi them

to the Judicial Conference and to Congress, as required the

ease of adoption of new Federal Rules of Procedure.

13. The similarity between General Admiralty Rule

44 and Rule 83, F. Civ. Pro. was noted by Mr. rete.

in the dissenting opinion in Miner v. Atlass, . S. 641, 655.

lied in that case to exact a $6,000 bond) held invalid, a

al J — Court rule, requiring non-residents. to post

mm — et to increase or decrease in the

ain, in First National City Bank of New York v.

egwieta, 287 F. 2d 219 [2d Cir., 1960], it was held on

th ‘of the Miner doctrine that the importation into

extrad 6 proceedings of the subpoena duces tecum pro-

a du r was a “basic procedural innovation” beyond the

ower = a Sederal judge sitting as an extradition mag-

‘Implicit in Miner, however, is the warning that

| eral courts must proceed with extreme caution when

Asked to sanction basic procedural innovations which

lie in that misty land where judicial and legislative

5 powers meet.“ (287 F. 2d p. 225.)

ee application of the Miner an the United

oe, Customs Court held that summary judgment pro-

dures were ‘‘basic procedural innovations’’ which it had

wer to utilize in a custom proceeding, Weather-Rite

ar Co. v. U. S., 298 Fed. Supp. 508, 514 (1969).

6 ene Builders Supply Company v. Commis-

294 F. 2d 333, 342 [6th Cir. 1961], holding deposition

betuate testimony not proper in tax court; Gamble v.

dé Talbot, Inc., 307 F. 2d 729, 732 [8rd Cir. 1962],

g District Court not authorized to fine counsel for

filing of pre-trial memorandum; Federal Maritime

issic v. Anglo-Canadian Shipping Co., 335 F. 2d

h Cir. 1964], holding that grant of rule-making power

But see Allen Forwarding Co. v. United States, 340 Fed.

12 (1972), wherein the Customs Court utilized, and did

ie es a rule judgment. . oud

n summary judgment. wo

m to be one of those “far reaching local rules,’’ the

fof which, in the light of Miner, was called in question in

TO! eee ne (1971

10

under Merchant Marine Act did not extend to Maritime

Commission the right to adopt discovery rule on production

of documents; Socony Mobil Oil Company, Inc. v. The S. 8,

Pacific Tide, 189 Fed. Supp. 724 (S. Dist. N. X., 1960),

holding summary judgment procedure not permissible in

admiralty; and Sea Trade Corporation v. Bethlehem Stee

) Company, Shipbuilding Division, 192 Fed. Supp. 913 (8

: Dist. N. Y., 1961), reaching same result.“ All of these

decisions. were grounded on authority of Miner v. Atlass,

supra.

B Comments of the Draftsmen of the Federal Rules of

Civil Procedure Show That the Purpose of Rule 83 Was

to Enable District Courts to Make Limited Local Rules

in Interstitial Areas.

Strong support for the theory that the grant of District

Court rule-making power under Rule 83, F. R. Civ. Pro.

was not intended for basic procedural innovations,“ but

merely for limited use in interstitial areas not covered by

the Federal Rules, is found in the comments of those who

participated in the drafting of the Federal Rules.“

Thus, Edgar Tolman, Secretary of the Advisory Com-

mittee is reported to have said that the function of Rule 8

was to enable District Court to fill ‘‘gaps’’ deliberately left

in the Federal Rules where the subject matter was too

es But see Wirte v. Hooper-Holmes Bureau, Inc., 327 F. 2d

939 [5th Cir. 1964], upholding validity of local District Court

„requiring disclosure of witness list at pre-trial conference on

ground that this was common practice and Supreme Court- Rules

had expressly declined to amend Rule 16, F. R. Civ.

D Seer tant iecsentoten Mp

local pe eg

11

variant for specification or of peculiarly local concern,

He added, however, that such gaps were few because of

the comprehensiveness of the Federal Rules“, and that

most gaps had resulted from a decision that the particular

situation, not dealt with by the Rules, was rare or rela-

tively unimportant or better handled on an ad hoc basis."

Said Mr. Tolman with reference to Rule 83: ;

lt permits judges to decide the wnusual or minor

procedural problems that arise in any system of juris-

- prudence in the light of the circumstances that sur-

round them and of the justice of the case without

the complications and injustice that must attend at-

__ tempts to forecast the situations and to regulate them

in advance either by general or by local rule. ue

3

1

Tolman also expressed the fear that trial courts were

passing too many local rules, thus frustrating the drafts-

men's hope for a “simple, flexible, manageable mechanism

with as few rules as possible.

- William Mitchell, Chairman of the Advisory Committee

felt that the federal rules were meant to cover adequately

lost procedural questions and was critical of the plethora

of local rules, designed to add detail to the Federal Rules,

3 ground that they tend “to destroy uniformity in

7. „one is also impressed with the comprehensive scope of

Subject matter which regulates the whole procedure in civil

in law and equity from the issuance of the summons and

ng of the first paper in the litigation throughout every

of its progress in the trial court * * , Hon. W. Calvin

it, Analysis of Proposed New Federal Rules of Cwil Pro-

22 A. B. A. J. 533, 534 (Aug. 1936).

Ses summary of Tolman’s remarks in Note on Rule 83, 67

mb. L. Rev. 1251, 1255 (Nov. 67).

. B. A., Federal Rules of Civil Procedure, Proceedings

he Institute at Washington and of the Symposium at New

k City (1938) p. 129.

lote on Rule 83, 67 Colum. L. Rev. 1251, 1256.

12

practice throughout the United States. He stated that

if the District Courts continued to use Rule 83 to add

meticulous details that they think improve the Supreme

Court rules, simplicity and flexibility will be removed, and

uniformity will be destroyed * * *’?,??

The conclusions of the Committee on Local District Court

Rules (Knox Committee), appointed by the Chief Justice

in 1938 were in the same vein:

*‘Apparently the Supreme Court and its Advisory

Committee intended as far as possible to cover gen

erally in the Federal rules all aspects of the civil

practice that need to be regulated in advance by rule

of court, and to leave to the discretion of the trial

judge the conduct of details of procedure and the

regulation of unusual situations as they arise in litiga-

tion and as the circumstances and the justice of the

case may demand. Rule 83 of the Federal Rules of

Civil Procedure strongly evidences this purpose by

the very significant provision of its last sentence

The conclusion that most district courts can function

with very few local rules is fortified by communications

received from numerous judges who state that the

Federal Rules of Civil Procedure without supplement

of any nature are quite sufficient for their needs. u

(Emphasis supplied.)

The Columbia Law Review note on Rule 83 and The

Local Federal Rules makes these cogent observations:

21. Op. eit. note 19, p. 327. Mr. Mitchell’s words proved

prophetic. Thirty years later, in testimony before the House

Judiciary Committee on April 21, 1967, Professor Rosenberg had

this to say: i

“‘[D]istrict courts around the country are spawning [local

rules] in great numbers. The Federal courts of this country

are becoming a kind of procedural Tower of Babel because of

the differences in local rules See op. cit. note 20; p. 1259.

22. Op. eit. note 19, p. 232.

P Pov Knox Report p. 10, as quoted in op. cit. note 20, pp. 1257- |

13

No general analytical guidelines for weighing the

däeesirability or validity of a given local rule have been

_ developed.™ As a result, the majority of district courts

g have, in promulgating rules, ignored the principles of

_ simplicity, scarcity and uniformity which guided the

_ formulation of the Federal Rules. At times, district

courts have used their power under Rule 83 to negate

"Specific requirements of the Federal Rules; more often,

8 to escape from the arduous but essential task

e case-by-case analysis. 67 Columb. L. Rev. pp.

1251-1252 (Nov. 1967) (Emphasis supplied.)

| 10 OUT IN HALF THE TRADITIONAL SIZE OF JURIES 18

A “BASIO PROCEDURAL INNOVATION” OF NO SMALL

. CE.

N

Based on the admittedly few experiments“ with six

member juries which had preceded Williams v. Florida, 399

U. 8. 78, 101-102, 90 S. Ot. 1893, 26 L. Ed. 2d 446, 460.461

(1970), this Court concluded in that case ‘that there is no

rnable difference between the results reached by the

two different-sized juries’’, and added:

17 Similarly, while in theory the number of viewpoints

3 on a randomly selected jury ought to

_ iherease as the size of the jury increases, in practice

te difference between the 12-man and the six-man jury

in terms of the cross-section of the community repre-

_ sented seems likely to be negligible’’,

Since Williams, a voice that deserves to be heard has

te ken sharp issue with the above conclusion. The voice is

lat of Professor Hans Zeisel, a participant in the Univer-

24. Cited as exceptions, are the Knox Report and Miner v.

#, 363 U. 8. 641 (1960).

See also the exhaustive note on The Local Rules of Civil

focedure in the Federal District Courts—a Survey, 1966 Duke

pp. 1011-1112, which takes note of a comment of Professor

tles Alan Wright that the local rules represent the ‘‘soft

erbelly’’ of federal procedure (p. 1012).

14

sity of Chicago Law School’s extended study of the Amer

can jury system, co-author with Professor Harry Kalve

of The American Jury (Little Brown & Co., 1966) (a com

parative study of judge vs. jury conclusions in mon

than 3500 scientifically selected jury trials across th

nation),” a statistician,” and surely one of this country’s

foremost authorities on jury behavior, After pinpointing

and then forthrightly dismissing as ‘‘scant evidence by any

standards the six citations of authority on which the “no

discernible difference“ conclusion in Williams was

Professor Zeisel convincingly demonstrates that there isa

difference of substantial proportions.

His chief point cuts to the core of the constitutional

and statutory goal that a jury be representative of a fair

cross-section of the community.’ For purposes of illus

tration, he assumes that a 10% minority within a particular

community share a particular viewpoint on some controver.

sial issue, such as capital punishment or the desirability of

schoolbussing. Assuming the selection by lottery of 10

twelve member juries and 100 six member juries, he poses

the question: how often would the minority viewpoint

probably be represented on the smaller jury as compared

with the larger? Statistically, his answer is this:

„Of the 100. twelve-member juries, approximately 72

would have at least one representative of that minor-

ity; while of the 100 six-member juries, only 47 would

26. See The American Jury, Ch. 3; p. 33 et seq.

27. See profile in 58 A. B. A. J. p. 368 (Apr. 1972).

28. Leisel, And Then There Were None: The Diminution of

the Federal Jury, 38 U. Chi. L. Rev. 710, 715 (Summer 71),

which is recapitulated in Zeisel, The Waning of the American

Jury, 58 ABAJ 367 (April 72).

29.. „To be gore, the number should prohebiy bs .

to 7 ration and to provide a fair possi-

bility for obtaining a representative cross-section of the com-

munity, Williams v. Florida, 399 U. 8. 78, 100.

30. 28 USC § 1861, 82 Stat. 54, as amended 3/27/68.

15

» have one, It is clear, then, that however limited a

_ twelve-member jury is in representing the full spec-

trun me community, the six-member jury is even

more and not by a ‘negligible’ margin,

Leisel, And There Were None, 38 U. Chi. L. Rev.

at in the desire to obtain juri representing a

os section of the community“, is the notion that a

balanced is likely to, and hopefully will, reach a

wrist result,” somewhere in between the extremes of

pinion in the community. Zeisel confirms the reality of

this assumption, stating, as applied to damages, for

ample, that whatever the composition of the jury, the

hages it awards will lie around the average of the eval-

ns of all individual jurors.“ . Again assuming 100

ly selected twelve member juries and a like number

le

is compared with only about 51% of the 6-man verdicts.

His results also show that only about 4% of the 12-man

erdicts will reach extremes of damages on the high or low

lide, as compared with 16% of the verdicts of 6-man juries,

b calculates that the standard deviation’’ or spread of

jury verdicts is about 42% greater in the case of the 6-man

ity than in the case of the 12-man jury.* Can a 42%

W n

7

hs tering of individual eccentricity through the group

ben, Jr., The Jury, the Law and the Personal Injury Damage

wd, 19 Ohio St. L. J. 158, 176 (1958).

U. Chi. L. Rev. 710, 716. See also Kalven, op. cit. note

1 5 177.

38 U. Ch. L. Rev. pp. 717-718.

2

Vi

16

increase in the gamble that a lawyer and his client tak

in trying a case be passed off as ‘‘negligible’’?

In the face of these very. real and substantial differences

between the six member jury and the traditional twelve

member jury, the question arises, is the game worth th

candle?

Chief Judge Edward J. Devitt of the United States Dis.

triot Court for the District of Minnesota, whose Court led

the headlong rush of federal District Courts to adopt six

member Jury rules,“ enthusiastically forecast nationwide

cost savings of $1,600,000 from the change. Devitt, Th

Sia Man Jury in the Federal Court, 53 FRD 273, 27

(1971). ‘Substantial savings in time have also bee

forecast.“

Putting these factors into perspective, however, Hans

Zeisel offers some sobering statistics : ;

But the money saved by having six-member civil

juries in the federal courts amounts to about 2.5 per

cent of the federal judicial budget and to a little more

than a thousandth part of 1 per cent of the total federal

budget. As to the time likely to be saved, the best esti-

mate is three tenths of 1 per cent of the judge’s work

ing time’’, Zeisel, The Waning of the American Jury,

58 A. B. A. J. 367, 370 5 85 72) meet erer supplied.)

Court made its move, and the date of his article. Gibbons, The

New Minijuries: Panacea or Pandora’s Box?, 58 ABAJ 5%

35. and Fritz, The Siz-Man Jury, 17 S. Dak. L. Rev

285, 288 72]. There seems, however, to be a conspiracy

of silence about the major

2 oe IV. |

EORY THAT DISTRICT COURTS ARE FREE TO FIX

AL RULE THE SIZE OF ron. JURIES CON.

THE POLICY OF THE JURY SELECTION

S

Rule 83, F. R. Civ. Pro., has the virtue of brevity and the

vice of incompleteness. For all that appears on the face of

Bule 83, the rule-making power of District Courts is plenary,

subject to the single limitation that local rules be not in-

at with these rules’’, i.e. the Federal Rules of Civil

e. But, of course, in addition to the ‘‘basie pro-

innovations“ limitation, there are other limitations

x not meet the eye. As pointed out in Barron and

it, local rules must be reasonable“; they must be

orm and non-discriminatory’’ and they must be. con-

with Acts of Congress“ (citing 28 U. S. C. § 2071. )

A Barron and Holtzoff, Federal Practice and Pro-

Rules Ed. 1958] § 1711, p. 179.

submitted that the instant six member jury rule,

ft as those of the other federal District Courts, is

tely at odds with the policy, expressed and implied in

ury selection statutes (28 U. S. C. §§ 1861 et seq.,

* March 27, 1968, Pub. L. 90-274 6 101, 82

S. C. § 1861 declares in pertinent part:

t is the policy of the United States that all litigants

Federal courts entitled to trial by jury shall have the

right to grand and petit juries selected at random

from a fair cross-section of the community in the dis-

st or division wherein the court convenes. * * *’’

s supplied.)

ion 1863 of the statute then expounds at length pro-

ior ions for the establishment, operation and review by a re-

panel of a written plan for random selection of

nd and petit jurors that shall be designed to achieve

18

the objectives of sections 1861 ***’’ Paragraph (b)(3)

of this section requires the plan to be designed to ‘‘insure

the random selection of a fair cross-section of the persons

residing im the community / . Paragraph (b)(4) te

quires the plan to ‘‘fix a minimum number of names to be

placed initially in the master jury wheel, which shall be at

least one-half of 1 per centum of the total number of persons

on the lists used as a source of names for the district or

division? . (Emphasis supplied.)

Here, tien, are meticulous provisions for a carefully re

viewed plan of jury selection, designed to maaimize the

chances that the jury ultimately seated in the jury box will

represent a fair cross section of the community. Even

the minimum number of names is specified, in order to

insure a large enough sampling to be representative.

But, obviously, the representative character of a jury is

only in part a function of the representative character of

the array from which the jury is chosen. It also depends

in substantial part upon the size of the jury ultimately

seated. Having gone to such lengths to ensure that the

array would in all likelihood be representative of a fair

cross-section’’ of the community, it is unthinkable that

Congress could have intended to risk the frustration of that

objective by leaving to the unchecked discretion of the

judges of ninety-two separate federal districts the decision

on the key question of jury size. As stated in Winsby ,

John Oster Manufacturing Company, 336 Fed. Supp. 663,

666 (1972) (now pending on appeal to the Third Circuit,

No. 72-1256) :

„Congress has recently demonstrated its intent to deal

with the subject of jury selection by enacting compre-

hensive legislation, chiefly designed to ensure represen-

tation of a broader spectrum or cross-section of the

community upon jury panels. Nowhere im this system

is there any suggestion that juries of less than twelve

were contemplated’. (Emphasis supplied.)

19

33 statute (28 U. S. C. 5 1870)

also reflects the Congressional intent that the question of

jury sine should not be entrusted to the divergent view-

points of individual District Courts. The three peremptory

challenges, specified for each side, were plainly geared for

twelve-member juries. Cut the jury in half and peremptory

wes can unseat the entire jury. What does this do

to the prospects of seating a jury representative of a ‘‘fair

cross-section’? of the community

_ Unquestionably, Congress intended that mot more than

ne-half of a civil jury could be displaced by means of

peremptory challenges. It is equally beyond question that

Congress did not intend to permit District Courts to defeat

that limitation by reducing the size of juries, least of all on

a piecemeal and non-uniform basis.“

II, as stated in Miner v. Atlass, 363 U. S. 641, 650, 80 S.

Ct. 1300, 1306, 4 L. Ed. 2d 1462, discovery is a “field of

deral jurisdiction where nationwide wniformity has tradi-

tionally always been highly esteemed’? (emphasis supplied),

the same is even more true of the traditional twelve-mem-

oe: jury.

tat . } V.

im INSTANT SIX MEMBER JURY RULE IS INCONSIS.

| TENT WITH RULE 48 OF THE FEDERAL RULES OF CIVIL

PROCEDURE, PERMITTING REDUCTIONS IN THE SIZE

or JURIES BY STIPULATION ONLY.

e F. R. Civ. Pro., provides:

The parties may stipulate that the jury shall consist

any number less than twelve or that a verdict or a

finding of a stated majority of the jurors shall be taken

s the verdict or finding of the jury’’.

Rte instant Montana District Court six member jury

th Rule 2914 of the Eastern District of Pennsylvania, which

WE telalto in’ tight e , 40 the absence of a

id for twelve members. Clearly, the peremptory challenge

ute is not adaptable to juries of divergent shapes and sizes.

It is submitted that Rule 48 has a double impact: (1) 1

contains an affirmative grant to the parties of authority to

stipulate to a jury of ‘‘any number less than twelve’’; (2)

Implicit in it is the belief, and, therefore, the intention, that

such a stipulation shall be the sole means of poe

size of the jury below twelve.

Rule 13(d)(1) of the United States District Court for

the District of Montana, as amended effective September 1,

1971, provides:

„1. A cay for the trial of civil cases shall consist of

six persons plus such alternate jurors as may be im-

paneled.’’

Thus, it freezes the civil jury at six members. Unlike some

of the other local jury rules, e.g. the Southern District of

Illinois and the District of Kansas, which provide for six

members ‘‘except as may be otherwise expressly required

by law or controlling rule’’, the Montana Rule purports to

restrict the jury to six members, even in the face of a Rule

48 stipulation of the parties to a jury larger or smaller than

six members. To this extent, the Montana six-man jury

rule is undoubtedly invalid, under the -express proviso of

Rule 83 F. R. Civ. Pro., that local rules be not inconsistent

with these rules

Both the Ninth Circuit in Colgrove v. Battin, 456 F. 2d

1379 [9th Cir. 1972] and the Fifth Circuit in Cooley .

Strickland Transportation Company, 459 F. 2d 779 [5th

Cir. 1972], rejected the contention that their respective six

member jury rules were in conflict with Rule 48.5%

The Ninth Cireuit's nearest approach, in its opinion,

below, to confronting the issue of the parties’ right to

36A. This ue is now pending on appeal to the Thind Cina

in Winsby v. John Oster Manufacturing Company (No. 72-1

aah ak ei Reema Ae. (No. 7

ih 5 5 5

ef of *

23

stipulate to the ‘size of the jury is found in the following

o read it [Rule 48, F. R. Civ. Pro.] to provide means

for enlarging the jury, i.e. as an affirmative grant of a

fight to the parties to demand more than the law other-

wise requires, is to stand it on its head’’. Colgrove v.

_ Battin, 456 F. 2d 1379, 1381.

When the Ninth Circuit speaks of ‘‘enlarging the jury

and demanding more than the law otherwise requires“,

the questions arise, ‘‘enlarging the jury“ from what num-

er and demanding more than what law otherwise re-

wires ' As David J. Gibbons cogently observed in his

article, questioning the validity of the six. member jury

rules in general and the logic utilized in Colgrove-in par-

Rar,

ehe only ‘law’ that requires fewer than twelve jurors

is the very local — that court had under con-

_ sideration. What the court actually did in Colgrove

es to abrogate Rule 48 in deference to the local rule

_ being challenged”. Gibbons, The New Minijuries:

_ Panacea or Pandora’s Box? 58 A. B. A. J. 594, 597

Ge 72

Like Rule 13 (d) (1) of the Montana District Court, Rule

f the Western District of Louisiana also purported to

the number of jurors at six members, irrespective of

atrary. stipulation of the parties.“ In upholding the

of the Louisiana District rule, as against the con.

a that it deprived the parties of their right under

48 to stipulate to a jury of more or less than six, the

cuit in Cooley v. Strickland Transportation, supra,

t also provided for three peremptory challenges to each

party, plus a fourth peremptory challenge in the event

nelling of an alternate juror in a lengthy case. Query,

is in conflict with the peremptory challenge statute

9 1870) f See W. Dist. Louisiana local rule 13, eff.

brushed ‘past the argument with the following e

(459 F. 2d p. 784):

„Rule 48, however, deals only with a stipulation 5

‘{tlhe parties’. It does not purport to prevent cour

rules which provide for civil juries of reduced size,”

(Emphasis, the court’s.)

It is indeed true that Rule 48 deals with a stipulation by

„the parties and it necessarily prevents any local cout

rule which operates to deny to the parties their right t

stipulate to a jury of some number other than six.

Both the Ninth Circuit in the instant case and the Fifth

Circuit in Cooley, supra, refused to read into Rule 48

negative intent to prohibit reductions in the size of juries

in the absence of a stipulation of the parties. Both courts

rested their conclusion in this respect on the fact that Rule

48 was promulgated at a time prior to Williams v. Florida,

399 U. S. 78, 90 8. Ot. 1893 (1970), when it was generally

supposed that twelve member juries were a constitutional

mandate. In the light of Williams, they felt that Rule 4

could no longer be construed as requiring twelve member

juries.” See Colgrove v. Battin, 456 F. 2d 1379, 1381 (9th

Cir. 1972) and Cooley v. Strickland Transportation Com

pany, 459 F. 2d 779, 784-785 [5th Cir. 1972].

We respectfully submit that the conclusions of the Fifth

and Ninth Cireuits with respect to the effect of the William

decision on Rule 48 are conceptually unsound. It is a funds

mental principle of construction that a rule or other en-

actment is to be interpreted i in accordance with the apparent

intention of those who framed it at the time of its enaci-

38. See Fox v. United States, 417 F. 2d 84 (5th ee Se

construing Rule 48 to require a unanimous verdict by a jury

also Bourne v. A. T. & 8. F. Ry. ee

Supreme Court of Kansas recently held that under

He

ure

0

1171

1

“Rule 46 n e tht

at the time of promulgation a jury of twelve was the

only jury known to the federal law and was thought

to b constitutionally required.

being true, the draftsmen of Rule 48 obviously be-

lieved and intended to provide by that rule the exclusive

means of reducing the size of the jury below twelve.

. se, as did the Fifth and Ninth Cireuits in Cooley

grove, that the draftsmen of Rule 48 would nec-

88 have. had a different intention, had they known

“tat twelve member jury was not constitutionally re-

ired, presumes too much. It may well be the conclusion

‘Osu that a stipulation of the parties under Rule

ld remain the exclusive means of providing for

ries. Least likely and least desirable of all, we

is the conclusion that decision on the size of juries

left to the vagaries of more than ninety separate

District Courts.

VI.

CONCLUSION.

1e 10 States Distriet Courts are staffed by able,

io us and well respected judges. It is respectfully

i, nevertheless, that they have overstepped

grant of rule-making power, bestowed upon

the Federal Rules, and never more so than

xe of the stampede to adopt six-member jury rules,

| this Court’s decision in Williams v. Florida,

8 78, 908. Ct. 1893, 26 L. Ed. 24 446 (1970).

ing this action, the District Courts presumed to

pate a major change of constitutional interpretation,

Court expressly declined to make in Williams and has mo

made to this very day. All of these local jury rules wen

adopted at a time when it remained the law of the land, as

cases, that trial

By what license do District Courts take it upon them.

selves to make rules, which force parties to go to trial tp

a six member civil jury, the very constitutionality of which

depends upon the accuracy of a forecast that this Court

will reverse a long standing interpretation of the Seventh

Amendment? Not only does such action put the litigants

in a difficult situation, but it also puts this Court in the

position of having to consider the effect upon cases here.

tofore tried under these local rules, should this Court decid

that the Seventh Amendment requires twelve- member

juries, after all.

The crux of the matter is that the District Courts have

inflicted upon us more than forty hastily enacted jury

rules of diverse application,” not even involving in all

cases the same number of jurors. They have created what

Professor Rosenberg aptly described as a ‘procedural

39. See Williams v. Florida, 399 U. 8. 78, 92 note 30, 90 8. Ct

1893, 1901 (1970). In Winsby v. John Oster Manufacturing Com

pany, 336 Fed. Supp. 663, 664 (1972), Judge Dumbauld of the

Western District of Pennsylvania stated that he had voted

against his court’s six member jury rule, because ‘prudence

dictated awaiting a square holding by the Supreme Court of the

tes sustaining the validity of such an innovation in

the trial of civil.and criminal cases in federal courts, rather than

rushing in for reason of convenience and expediency * * *’¥

40. See tabulation

Panacea or Pandora’s

:

:

Tower of Babel because of the differences in local rules 1

in a “‘field of federal jurisdiction where nationwide uni-

formity has traditionally always been highly esteemed’’.

See Miner v. Atlass, 363 U. S. 641, 649 (1960).

More than two centuries ago Blackstone gave this pro-

hetic warning to a country which subsequently abandoned

r cf : a

het it be again remembered that delays, and little

_ inconveniences in the forms’ of justice, are the price

that all free nations must pay for their liberty in more

_ substantial matters; that these inroads upon this sacred

_ bulwark of the nation [the jury system] are funda-

mentally opposite to the spirit of our constitution; and

that, though begun in trifles, the precedent may gradu-

all increase and spread, to the utter disuse of juries

in questions of the most momentous concern. (Black-

_ stone’s Commentaries, Vol. IV, p. 350; 11th Ed. 1791,

_ 4s quoted in Kalven & Zeisel, The American Jury

_ (Little Brown & Company, 1966, p. 7.) (Emphasis

supplied.)

The adoption of rules reducing below twelve members

the size of civil juries should be held beyond the power

of United States District Courts and the judgments below

should be reversed.

ee Respectfully submitted.

5 Wu A. Wiox,

i 1000 Merchants Bank Building,

oe Indianapolis, Indiana 46204,

7 5

2200 Worthen Bank Building,

i Little Rock, Arkansas 72201,

Jonx C. Exam,

52 East Gay Street,

Columbus, Ohio 43215.

Nee on Rule 83, 67 Colum. L. Rey 59. note 2

CERTIFICATE OF SERVICE.

This is to certify that on November 21, 1972, three (3)

printed copies of this Brief Amicus Curiae were served

upon each of the parties to the above-entitled action by

depositing the same in the United States mail, with air

mail postage prepaid, addressed to the parties’ respective

counsel of record, as follows:

Lloyd J. Skedd,

P. O. Box 1195,

1225—11th Avenue

Helena, Montana 59601,

Counsel for Petitioner.

Cale Crowley,

500 Electric Building,

Billings, Montana 59101,

Counsel for Respondent.

L. Morris Ormseth,

Seventh Floor,

First National Bank Building,

Great Falls, Montana 59403,

Counsel for Defendant.

ee)

Attorney for International

Association of Insurance Counsel.