Court of Appeals lacks tort plaintiffs’ perspective

Posted: 1:32 pm Fri, February 15, 2013
By Kevin S. Carpenter

Time has come for courts to specialize

I mostly represent plaintiffs in tort and insurance claims. In district court my cases are frequently assigned to a judge with little or no experience in tort law. I understand this. In my perfect world my district court cases would be heard in a “torts court” by judges that have significant experience with tort law.

Even better, my cases would be heard by a judge who has experience as a plaintiffs’ tort lawyer. I practiced mostly on the tort defense side for 17 years and then mostly on the tort plaintiffs’ side for 15 years and I will tell you that there are things you see differently depending upon the side you have worked on.

But I concede that the current volume of tort cases doesn’t warrant creation of a “torts court.” I also think that the current volume of other cases tends to discourage tort lawyers from applying to be district court judges.

What I don’t understand is that when one of my tort cases gets to the Court of Appeals, even though there are several judges on the court with tort law experience I might not have one of them assigned to my case. I also question why there aren’t more plaintiffs’ tort lawyers on the Court of Appeals.

There are two problems here. The first is that we seem to be trapped into thinking that our Court of Appeals judges need to be generalists, like our district court judges and our Supreme Court justices. The second problem is that our current Court of Appeals lacks a tort plaintiffs’ perspective.

In every legal dispute, one side is right and another is wrong [sometimes each side is partially right and partially wrong]. All of us who have been in court more than a few times have lost. And frequently when we lose we understand and appreciate the reasons for it. I know that sometimes when I lose it is because I was wrong about the facts and occasionally when I lose it is because I was wrong about the law [and I suppose that sometimes I was wrong about both the facts and the law].

Getting it right

In recent years I have had several cases where I sincerely believe that I lost because the judge or [appellate] judges who decided the dispute did not appropriately apply the involved legal issue. In my younger days in such cases I always faulted myself for failing to properly explain the issue to the court. I still accept responsibility for decisions I don’t like, but lately I have strongly felt in several instances that the court wouldn’t have understood my explanation no matter how good it was simply because the court didn’t understand the legal principles we were discussing—it was like I was trying to explain something in English to an audience that only speaks Greek.

The goal of the judiciary is to make the “right” call in every case: We don’t tell a claimant in a tort case that she/he isn’t likely to get the “right” decision from the court because the judge assigned to the case knows a lot about criminal law but almost nothing about torts. Our Minnesota Judicial Branch, in its 2011 Annual Report to the Community, stated that “[E]very two years the Minnesota Judicial Branch adopts a strategic plan for the upcoming biennium.” The Report, under “Priorities & Strategies,” listed three goals. All three of the stated strategic goals reflect that the Judiciary is committed to making the “right” decisions in every case: “A justice system that …provides appropriate levels of service to all users”… enhancing outcomes… engendering public trust and confidence…

How does the Judiciary engender public trust and confidence that it is making the “right decision” in every case? What if the court system isn’t working as it should? What if the trial courts are making mistakes and the appellate courts aren’t catching them? What if the appellate courts are making mistakes instead of correcting them?

About 25 years ago, Minnesota Bar Association President Richard L. Pemberton of Fergus Falls noted in his farewell message as president that perhaps we ought to be concerned about the fact that the practice of law is moving more and more toward specialization while our judges are—for the most part—locked into being generalists. In the years since then, the movement of practicing lawyers toward specialization has continued but our judges remain—for the most part—locked into being generalists.

We desire specialists

The lack of specialization at the trial court level makes confidence in the system problematic. While there are a few lawyers among us that seem to be extremely knowledgeable about many different areas of law, the continuous move toward specialization suggests that most of us think that the law is so broad and complex that few of us can know all of it well. How can we think that generalization is good for district court judges when almost none of us see it as good in our law practices?

In the past several years we have seen the emergence of “problem-solving courts”—we now have “drug court” in several judicial districts and recently we started Veterans Court in Hennepin County and Civil Commitment Court in Ramsey County. The emergence of these problem-solving courts suggests that, in certain areas, specialization by the courts is recognized as desirable.

Significant specialization at the trial court level, though, appears precluded by the volume and nature of the cases to be decided. In 2011, over 1.5 million cases entered the judicial system [see 2011 Annual Report to the Community by the Minnesota Judicial Branch.] Nearly 1.2 million cases were labeled “Minor Criminal” and 139,110 cases were labeled “Minor Civil.” Nearly 43,000 cases were labeled “Juvenile,” 15,100 cases were labeled “Probate/Mental Health,” and 48,700 cases were labeled “Family.” Another 40,350 cases were labeled “Major Civil” and some 55,700 cases were labeled “Major Criminal.” These 1.5 million cases were assigned to 289 district court judges, an average of 5,212.5 cases per judge.

These numbers are, quite frankly, staggering. The cases I typically work on, torts and insurance coverage cases, are in the “Major Civil” category, which had less than 3 percent of all filings and roughly only 140 of the 5,212.5 case filings per judge. So perhaps the numbers don’t justify creation of a “torts court.” But if the judiciary is committed to making the right decision in every case and committed to engendering public trust and confidence, then continuing to move toward specialization at the district court level, where possible, makes sense.

An issue of diversity

Parties to a dispute feel more confident about the dispute being resolved correctly when the deciding judge is knowledgeable about the issue in dispute. And more lawyers who specialize in their law practices would be encouraged to apply to be judges if they felt the judicial work they would be doing was better aligned with the experience they gained as practicing lawyers.

Our district court judges are generalists because they have to be—the volume and diversity of cases that need to be resolved precludes specialization at the district court level. But because our district court judges are compelled to be generalists, specialization at the Court of Appeals is imperative.

The Court of Appeals is supposed to be an “error-correcting” court. [See, for example, Lake George Park, L.L.C. v. IBM Mid America Employees Federal Credit Union, 576 N.W.2d 463, 466 (Minn. App. 1998)]. We expect that given the sheer volume of cases that the district courts are handling, there will likely be some mistakes made. The Court of Appeals is supposed to catch and correct those mistakes. What that means is that we should be making a concerted effort to bring to bear at the appellate level the expertise that is sometimes missing at the trial court level. And I don’t see that happening.

Instead of appointing and assigning Court of Appeals judges to maximize error correcting, we appoint and assign them as generalists in a second-tier district court. Once someone is appointed to the Court of Appeals they become part of a “pool” of appellate judges and cases are assigned to judges from the “pool” with no regard to their expertise—or lack of expertise—in certain areas of law. Though we certainly know better, we act as if Court of Appeals judges suddenly become all-knowing by virtue of their appointment to the Court.

We can achieve the specialization we need at the Court of Appeals by fully embracing diversity. Diversity is a very good thing because, properly utilized, it leads to better results and more confidence in the judicial system. Most of us now realize that if our judiciary included only middle-aged white males, as it once did, we would suffer from a lack of input from women and minorities, and women and minorities would lack confidence in the judicial system because it wouldn’t appear to be making any effort to include their views.

But in addition to physical diversity, there is diversity of experience. Appearing before a panel of appellate judges lacking tort experience makes those of us handling tort cases feel a bit like blacks before an all-white judiciary. We tend to question whether the court really knows or cares about “us.”

In appointing Court of Appeals judges, in addition to considering physical diversity, we should periodically evaluate the types of cases that the Court of Appeals is reviewing and appoint appellate judges with the expertise needed to address the issues raised. And if our goal is to make the “right” decision in every case, then at the appellate level we should assign judges to cases based upon their expertise.

We also need to recognize that ensuring a diversity of experience requires that some plaintiffs’ tort lawyers be appointed to the Court of Appeals and assigned to participate in deciding tort cases. Right now we have several Court of Appeals judges with substantial experience as tort defense lawyers. Suggesting that these people adequately represent the plaintiffs’ perspective is like telling disputants in landlord-tenant cases that we will solve the problem of tenants’ lacking representation of their views by appointing more landlord lawyers to the Court.

Please keep in mind that I don’t assert that the system is wholly broken; rather I contend that some big mistakes are being made that could easily be avoided.

In The Last Lecture, Randy Pausch wrote: “You may not want to hear it, but your critics are often the ones telling you they still love you and care about you, and want to make you better.” I’m not sure about the “love” part, but I care very much about making our Minnesota courts the best they can be.

Kevin S. Carpenter is a St. Cloud attorney. He can be reached at kevin@carplaw.com.