Seventh Circuit

Subscribe to Seventh Circuit via RSS

I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied. This post focuses on twelve person juries – click here for a previous post regarding juror questions and click here for a previous post regarding preliminary jury instructions.
Twelve person juries had the least conclusive results of the four Phase Two Principles. Mathematical modeling and other data suggested that twelve person juries would increase jury diversity and, therefore, presumably fairness. Fifty trials used twelve person juries. 50% of the judges in the trials believed the larger panels resulted in increased diversity, but only 39% of the trial attorneys agreed. But relatively few judges (25%) and trial attorneys (25%) thought the larger juries increased the fairness of the trial. Judges (78%) and trial attorneys (64%) largely agreed that the larger juries did not decrease trial efficiency. Finally, 93% of jurors and 77% of attorneys agreed that “the right number” of jurors were empanelled expanded in their cases.
The actual fairness of trials may not have been improved by larger juries. But the increased diversity of the twelve person jurors should at least increase the perception of fairness. Much of the power of our judicial system rests in a shared public perception of its fairness. The perception of fairness, therefore, is critical to the system. As a result, I agree with the Commission’s finding that, despite the inconclusive findings, twelve person juries warrant at least further study, if not widespread adoption.
Finally, one interesting procedural note: courts across the country face consistent problems filling jury pools. So, increasing jury sizes will strain an already strapped system. This is partially resolved by the Commission’s decision not to increase each side’s three peremptory challenges along with the increased jury sizes. Not increasing peremptory challenges reduces the increased strain on the jury pool and helps increase diversity, but it also limits counsels’ ability to pick the best possible jury. There may not be a perfect solution to this problem, but it is, at a minimum, an interesting tension that warrants additional study.
…
Continue Reading American Jury Project: 12 Person Juries

I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied — click here for the last post discussing the use of juror questions.
The second Phase Two Principle tested was substantive preliminary jury instructions. Courts were instructed to follow traditional jury instruction procedures to develop initial substantive jury instructions explaining:
The jury’s rule;
Trial procedures, including taking notes and juror questions – click here for the Blog’s post about jury questions;
The native and evaluation of evidence;
Issues to be addressed;
The elements of the claims; and
Jurors’ obligations during trial.
Courts were also encouraged to repeat instructions throughout trials as necessary. When I clerked for District Judge Gordon Quest (W.D. Mich.), I saw numerous trials, in a very short period, all of which used preliminary instructions. It is hard to believe a trial without preliminary instructions could be as effective as one with them. Most jurors come to a trial without significant trial experience beyond Law & Order or CSI – both great series, but lousy juror education. Going through a trial without instructions until the end is like asking people to play football, without telling the rules of the game until the fourth quarter. The results of the study confirm my belief. Thirty four trials used preliminary instructions. Judges from 87% of the trials reported that the preliminary instructions approved juror understanding. 80% of the judges said the instructions increased the judge’s satisfaction with the trials. And judges believed that the instructions increased fairness in 76% of the trials. No judge believed that the instructions harmed the trial process. Chief Judge Holderman believed the preliminary instruction were valuable:
I have found that preliminary instructions helped to orient the jurors to the case and allowed the jurors to start making connections between the evidence and the disputed issues in the case more quickly.
…
Continue Reading American Jury Project: Preliminary Jury Instructions

I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied.
First up is allowing jurors to submit written questions for witnesses. As I discussed previously, jurors and judges both overwhelmingly believed juror questions benefited both juries and trials. It is hard to imagine that juror questions would not benefit trials and justice. If you ever have the opportunity for a post-trial discussion with a jury, a common theme is what the jury did not understand about the trial and the questions jurors wanted the lawyers to ask. While it is a little frightening for trial lawyers to give up some control of the trial process, overall both sides are better off with the jurors’ questions answered, removing a huge distraction for jurors. And you can learn much about how a jury is leaning or what you need to do in your case by listening to jurors’ questions.
Of course, as with most things during a trial, the details are very important. The Commission used the following initial jury instruction explaining that written questions could be submitted, that they would be asked only if allowed by the Fed. R. Evid., that they might be revised to comport with the Rules, and that questions may or may not be asked of all witnesses:
In this trial, we are using a procedure that you may not have seen before. As members of the jury, you will be permitted to submit questions for a witness after the lawyers have finished questioning the witness. Here is how the procedure works: After each witness has testified and the lawyers have asked all of their questions, I will turn to the jury to see if anyone has any additional questions. If you have a question, you should write it down and give it to the court staff.
You may submit a question for a witness to clarity or help you understand the evidence. Our experience with juror questions indicates that a juror will rarely have more than a few questions for one witness, and there may be no questions for some witnesses.
If you submit a question, the court staff will provide it to me and I will share your questions with the lawyers in the case. If your question is permitted under the rules of evidence, I will read your question tot the witness so that the witness may answer it. In some instances, I may modify the form of phrasing of a question so that it is proper under the rules of evidence. On other occasions, I may not allow the witness to answer a question, either because the question cannot be asked under the law, or because another witness is in a better position to answer the question. Of course, if I cannot allow the witness to answer a question, you should not draw any conclusions from that fact, or speculate on what the answer might be.
Here are several important things to keep in mind about your questions for the witnesses.
First, all questions mush be submitted in writing. Please do not ask questions orally of any witness.
Second, witnesses may not be re-called to the witness stand for additional juror questions, so if you have a question for a particular witness, you should submit it at the end of that witness’s testimony.
Finally, as jurors you should remain neutral and open throughout the trial. As a result, you should always phrase any questions in a neutral way that does not express an opinion abut the case or a witness. Remember that at the end of the trial, you will be deciding the case. For that reason, you must keep an open mind until you have hard all of the evidence and the closing arguments of counsel, and I have given you final instructions on the law.
The following instruction was used at the end of trials:
During the trial, written questions by some members of the jury have been submitted to be asked of certain witnesses. Testimony answering a question submitted by a juror should be considered in the same manner as any other evidence in the case. If you submitted a question that was not asked, that is because I determined that under the rules of evidence the answer would not be admissible, just as when I sustained any objection to questions posed by counsel. You should draw no conclusion or inference from my ruling on any question, and you should not speculate about the possible answer to any question that was not asked or to which I sustained an objection.
Jurors were allowed to ask questions in 38 trials, and asked questions in 31 of those. 56% of jurors asked at least one question. Judges (63%), litigators (60%), and juries (87%) generally agreed that jurors asked an appropriate number of questions. Most jurors said that their questions were for the purpose of:
Clarifying information;
Getting additional information;
Linking evidence; or
Covering something lawyers missed.
Judges (77%) and litigators (65%) largely agreed that juror questions increased juror understanding and that they did not harm trial efficiency – judges (75%) and litigators (66%). Even the losing litigators largely believed juror questions enhanced juror understanding. Based upon this data, it appears that juror questions should be widely adopted.
…
Continue Reading American Jury Project: Juror Questions

The Seventh Circuit instituted a Commission to study the implementation of the ABA Jury Project. The Northern District was heavily represented on the Commission. The following Northern District Judges were members of the Commission: Bucklo, Brown, Coar, Darrah, Denlow, Der-Yeghiayan, Gottschall, Holderman, Kennelly, Lefkow, Moran, Schenkier, St. Eve, and Zagel. The Commission recently published its report — click here to read it. The report describes a two phase analysis. In the first phase, district judges tested the following seven ABA Principles:
1. Twelve-Person Juries;
2. Jury Selection Questionnaires;
3. Preliminary Substantive Jury Instructions;
4. Trial Time Limits;
5. Juror Questions;
6. Interim Trial Statements by Counsel; and
7. Enhanced Jury Deliberations.
Other Principles, such as juror notebooks and allowing jurors to take notes, were already in such widespread use that they were not tested. Click here for the Phase One Project manual detailing the principles, the rationales and authority behind them, and suggested procedures. Phase One resulted in questionnaires from 22 participating federal trial judges, 74 participating attorneys and 303 jurors from 38 trials that used one or more of the seven Principles. Based upon the analysis of Phase One results and questionnaires, the Commission focused Phase Two on the following four Principles:
1. Juror Questions;
2. Interim Trial Statements by Counsel;
3. Twelve-Person Juries; and
4. Preliminary Substantive Jury Instructions.
These Principles were chosen because of Phase One popularity (78% of jurors reported that being able to ask questions increased their satisfaction with the process) and because of a desire to study the Principles more. Click here for the Phase Two manual.
In Phase Two, 108 jurors from 12 trials employing one or more of the Phase Two Principles filled out questionnaires. In addition, 12 attorneys and 4 district judges that participated also filled out questionnaires. The results are interesting, but more importantly create the opportunity to powerfully impact the trial system across the Seventh Circuit in ways that benefit all of the stakeholders in the trial process — the litigants, the jurors, the judge and the judge’s chambers, and the litigators.
All four of the Phase Two Principles showed significant benefits to the trial process. 83% of jurors reported an increased understanding of the facts when allowed to ask written questions through a judge — the questions were reworded to meet evidentiary rules. And 75% of judges and 65% of attorneys thought the questions benefited jurors. Similarly, preliminary substantive jury instructions were found to improve trials by jurors (80%), judges (85%) and attorneys (70%). And the same was true for interim statements to the jury — jurors (80%) and judges (85%). Finally, twelve-person juries were found not to harm efficiency, while increasing juror diversity.
Each of the four Phase Two Principles, as well as several of the additional three Phase One Principles deserve more attention and analysis. So, over the next several weeks I will provide follow up posts discussing the findings of those Principles in greater detail. I will start with the idea of juror questions, which I find particularly important, later this week or early next.
…
Continue Reading Seventh Circuit American Jury Project

The Seventh Circuit’s Judge Posner is scheduled to begin a bench trial this morning on the issue of inequitable conduct in New Medium Technologies LLC v. Barco NV, No. 05 C 5620. The trial is scheduled to last today and tomorrow, but could go as long as Wednesday. I represented a party that was in the case, but settled and was dismissed from the case last year. As a result, I have not covered any opinions from the case, previously before Judge St. Eve. But I am going to observe some of the trial, and I may blog about the trial if I find some interesting things to say that relate more to the trial techniques of counsel or Judge Posner’s courtroom than the facts of the case.
But if you are interested in watching Judge Posner hear a patent case or what I expect to be some excellent advocacy from the Niro firm, for plaintiffs, and Baker & McKenzie, for defendants, the bench trial is being heard in Judge St. Eve’s courtroom.
…
Continue Reading Seventh Circuit’s Judge Posner Hears Northern District Bench Trial

Miyano Machinery USA, Inc. v. MiyanoHitec Machinery, Inc., No. 08 C 526, 2008 WL 236610 (N.D. Ill. Jun. 6, 2008) (Nolan, Mag. J.).
Judge Nolan granted plaintiff’s motion to quash defendants’ subpoenas of plaintiff’s counsel – who represented: 1) plaintiffs and perhaps individual defendants in plaintiffs’ earlier trademark prosecution; and 2) plaintiffs in this case. The Court denied defendants’ motions to compel production of communications between plaintiffs and plaintiffs’ counsel and to pierce the privilege.
Defendants argued that plaintiffs committed fraud on the PTO, and therefore inequitable conduct, when plaintiffs’ counsel allegedly knowingly submitted false declarations during prosecution of plaintiffs’ trademarks. Defendants based their claims on an allegedly privileged communication between plaintiff and its counsel (Exhibit L) that plaintiffs claimed was inadvertently produced.
The Court held that Exhibit L was inadvertently produced – it was just one document among 22,000 pages and plaintiffs requested its return immediately after discovering its production. Furthermore, Exhibit L was essentially a list of questions from counsel to plaintiffs, by which counsel was making sure he had sufficient information to file the declarations in question – evidence supporting plaintiffs’ defense of defendants’ inequitable conduct claims.
Finally, while the Seventh Circuit had not ruled on the correct test for whether to allow attorney depositions, the Court followed what it held was the prevailing test in the Northern District, as set forth in Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986):
1. No other available means for obtaining the information;
2. Information is relevant and not privileged; and
3. Information is crucial to the case.
Id. Because plaintiffs identified four other individuals allegedly having the information – some of whom had not been deposed – defendants had not met their burden to depose plaintiffs’ counsel.
…
Continue Reading Subpoena of Plaintiff’s Prosecution/Trial Counsel Denied.

Blawg Review #174 is available at D. Todd Smith’s Texas Appellate Law Blog — click here to read it. Smith boldly went without a theme, but it is a great Review, even without a theme. Smith picks up on my coverage of the Seventh Circuit’s recent decision affirming the Northern District’s holding that the NFL is a single entity for IP licensing purposes, as well as related coverage at Sports Law Blog and Blawgletter.
…
Continue Reading Blawg Review #174

Am. Needle, Inc. v. New Orleans Louisiana Saints, No. 07-4006 (7th Cir. Aug. 18, 2008) (Kanne, J.).*
Judge Kanne, writing for a unanimous panel, affirmed Judge Moran’s opinions holding that the National Football League (“NFL”) acting through its NFL Properties entity was a single entity and, therefore, dismissing plaintiff American Needle’s Sherman Act antitrust claims — click here and here to read the Blog’s post on Judge Moran’s prior opinions in this case. For more than twenty years, NFL Properties licensed American Needle to use various NFL and NFL team trademarks on American Needle’s headwear. American Needle filed this suit after NFL Properties entered an exclusive, ten year license with Reebok, ending American Needle’s license rights. Plaintiff argued that the NFL teams collectively, as well as in concert with Reebok, violated the antitrust laws by acting together through NFL Properties to license their collective intellectual property rights exclusively to Reebok (American Needle argued that the NFL did not violate antitrust laws when it licensed to numerous parties, including American Needle, through NFL Properties).
The Seventh Circuit explained that sports leagues are difficult to classify because they display elements of a single entity, as well as elements of a joint venture made up of independent owners. The Seventh Circuit, therefore, determines whether a sports league is a single entity “one league at a time” and “one facet of a league at a time.” In this case, the NFL was a single entity because for the purpose of promoting its football product — because no one team can stage a game alone. It followed that if the NFL was a single entity for promoting football, it was also a single entity for promoting its product by selling NFL apparel. Additionally, the Court noted that the record established that the NFL teams had been acting as a single entity for IP licensing since 1963.
The opinion’s introductory paragraph is also worth discussing. It is very well crafted, engaging both legal and non-legal readers:
As the most successful and popular professional sports league in America today, the NFL needs little introduction. Indeed, the NFL has inspired countless hours of heated and in-depth discussion about the league’s 88 years of professional-football history, including its great players, championship teams, and memorable games. But the only discussion the NFL inspires here involves aspects of the league that are not as well known: the league’s corporate structure, and the nature of its relationships with its member teams and the entities charged with licensing those teams’ intellectual property.
For another perspective on the opinion, check out the WSJ Law Blog’s post
* Click here to read the Seventh Circuit’s opinion.
…
Continue Reading Seventh Circuit Affirms: NFL is a Single Entity

On Wednesday, August 13 at noon CT, I am giving a teleseminar with Evan Brown (a fellow Chicagoan who writes the insightful Internet Cases blog) and Professor Eric Goldman (who writes the excellent Technology & Marketing Law Blog) discussing the current state of the Communication Decency Act’s Good Samaritan clause. The seminar will focus on, among other things, the Roommates decision in the Ninth Circuit — click here for Goldman’s posts on the case — and the Craigslist decision from the Seventh Circuit (upholding a Judge St. Eve opinion) — click here for the Blog’s posts about that case and here for Brown’s posts.
Click here for ALI-ABA’s web brochure about the seminar. It promises to be an interesting discussion with lively debate. And ALI-ABA has generously offered a $30 discount off of the seminar’s $149 cost for Blog readers that use this code: TSPV02DD.
…
Continue Reading Communications Decency Act Seminar

The Seventh Circuit’s Judge Posner wrote a Tips from the Trenches column for the ABA in May. The article was well written and insightful, no surprise from Judge Posner. He summed up his advice like this:
be brief, be clear, be simple, be vivid, be commonsensical, avoid legalisms, and do not be afraid to spoon-feed us–we will not bite your hand.
He also provided more detailed advice. Here are my favorites:
* Use visual aids. But he suggests pictures or objects instead of charts or graphs. People (and judges are people, although litigators sometimes forget they are) connect with and remember images better than words or statistics, especially when they see the demonstratives quickly and from a distance.
* Admit when you do not know and concede when you must. Few things kill credibility like false statements, even unintentionally false ones, or refusing to admit the obvious.
* Rehearse. And not just by reading your materials and preparing notes. Set up a session as close to what you can expect as possible. You practice baseball by playing and running by running, practice argument the same way.
* Dress to be taken seriously. First impressions matter and the judge(s) see you both before and while they hear you.
Most of Judge Posner’s points apply to both district and appellate court arguments. The article is worth a read.
…
Continue Reading Argument Advice from the Seventh Circuit’s Judge Posner