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Thursday, August 20, 2009

Courts - "3rd Circuit Appeal Challenges Judge's Outside Research in Bench Trial"; Where is Indiana on this?

Henry Gottlieb writes today in the New Jersey Law Journal:

A federal appeals court has been asked to limit the right of judges to do their own research in bench trials, lest they be swayed by facts not before them.

U.S. Magistrate Patty Shwartz in Newark, N.J., no-caused a medical malpractice claim after consulting published and unpublished cases -- not cited by the parties -- that dwelled on the type of injury the defendant doctor was accused of inflicting.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals affirmed the verdict, saying the research was for "informational" purposes only and was not the basis for Shwartz's decision.

The plaintiff, seeking en banc review and a new trial, asks: Was Shwartz's inquiry akin to jurors making clandestine visits to an accident scene or doing Internet research in the middle of a trial?

Or was the judge engaged in acceptable, indeed commendable, efforts to inform herself before reaching the right decision, as the defense argues in the case, Araoz v. United States, 08-2248. * * *

The plaintiffs lawyer, Kenneth Berkowitz of Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte in Chatham, N.J., concedes there was enough in the record presented by the parties to support Shwartz's verdict.

But he objects to her examination of 14 published and unpublished cases from other federal and state jurisdictions that were not presented by either side in a case in which there were no legal disputes. The research was solely to glean facts, and that was extraneous information that could have tainted the outcome, Berkowitz argues.

The research exposed the judge to commentary by other judges on the reliability of experts and may have colored her view, Berkowitz argues.

In one of the cases she cited, an unreported state court decision in Ohio, a judge was critical of the expert who Berkowitz used in his case.

"The magistrate judge conducted this research solely to become informed of the extraneous facts, analysis and outcomes in fourteen state and federal cases, not one of which was cited by either party, which cases all involved the very same injury and liability positions as advanced by plaintiff-appellant," Berkowitz says in an Aug. 11 petition.

"Once the magistrate judge ventured outside the record to explore factually similar cases for informational purposes the magistrate judge exceeded the bounds of what she permissibly could do as a facto finder in this non-jury trial," he argues.

In an interview on Tuesday, Berkowitz amplified his assertion that there is a difference between research for guidance on the law and guidance on the facts. "If you are trying to figure out what the federal law is in New Jersey, you look at federal cases and New Jersey state cases," he says. "You would never look to Ohio law in an unpublished decision. There is no legitimate reason for doing it." * * *

Berkowitz's brief says it's true that magistrates, unlike jurors, are exposed to inadmissible material and know how to filter it out. "Such filtering did not happen here," the pleading says. "Instead, the magistrate judge not only improperly sought out the extraneous material she considered it, discussed it and relied upon it." * * *

Defense counsel Allan Urgent, an assistant U.S. Attorney in Newark, declines to comment.

Urgent and Assistant U.S. Attorney Pamela Perron argued in a brief before the three-judge panel that Shwartz did not rely on the 14 cases and that their inclusion in the opinion was innocuous.

Two of them were used to describe terms such as "shoulder dystocia" and the definitions were no different from the ones used by experts in the case, the brief says.

Other cases were cited for the self-evident point that "many malpractice cases turn on competing expert testimony," according to the brief.

"In this case a conscientious, hardworking judge exercised her independent judgment in preparing the trial court's findings of fact and conclusions of law," the defense brief says.

"In innumerable cases resulting in a judgment, trial judges conduct independent research to assure themselves of the current status of law," the brief says. "It is certainly not unusual or improper for a judge to cite factually similar cases to help explain the court's ruling."

"The public expects judges to read the law and to make use of existing case law," the brief says. "Adopting Araoz's speculative argument would create a new appellate issue that could be litigated in almost every case. The Court should reject Araoz's reasoning because the result would discourage trial judges from undertaking legal research as part of the decision-making process."

This May 7th ILB entry linked to a law review article titled "The Curious Appellate Judge: Ethical Limits on Independent Research" (by Elizabeth G. Thornburg of Southern Methodist University) and to Ind. Code of Judicial Conduct Rule 2.9(C), adopted by Indiana's Supreme Court in 2008.

This July 4th ILB entry quoted from the Indiana Court's May 13th, 2008 opinion in the "MySpace case," A.B. v.State of Indiana, where Justice Dickson wrote at p. 2 [emphasis added]:

As a preliminary matter, we note that the evidence presented at the fact-finding hearing was extremely sparse, uncertain, and equivocal regarding the operation and use of MySpace.com ("MySpace"), which is central to this case. Only two witnesses testified at the fact-finding hear-ing, the school principal and A.B.'s mother. No expert witnesses were called. Neither of the witnesses provided knowledgeable and reliable details about MySpace. The primary source of information about MySpace came from the testimony of the principal, whose "understanding [came] from talking to students and trying to go figure how to go about researching this." Tr. at 25. The principal testified: "I don't get on MySpace." Tr. at 36. The Commentary to Canon 3B of the Indiana Code of Judicial Conduct advises: "A judge must not independently investigate facts in a case and must consider only the evidence presented." Notwithstanding this directive, in order to facilitate understanding of the facts and application of relevant legal principles, this opinion includes information regarding the operation and use of MySpace from identified sources outside the trial record of this case.
This year, on May 27th, the Court ruled in the case of Brandon Stanley v. Danny Walker, Justice Dickson included this footnote 3 on p. 4 of his dissent [emphasis added]:
The majority opinion, the concurrence, and this dissent discuss information from resources that are not part of the record of proceedings of this case. Indiana Code of Judicial Conduct Rule 2.9(C) declares that judges "shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed." And Comment [6] explains that this prohibition "extends to information available in all mediums, including electronic." I understand this Rule's reference to the "facts in a matter" to mean the specific facts relating to the incident upon which a lawsuit is based, but that the Rule does not restrain appellate consideration of other general information helpful to the function of appellate courts in statutory interpretation and the advancement determination of common law.
Justice Dickson was on a panel on "Drawing the Line Between Internet Research and Impermissible Fact-Hunting" last Oct. 28, His materials included the new rule, A.B. v. State, and two articles:

Posted by Marcia Oddi on August 20, 2009 08:47 AM
Posted to Courts in general | Indiana Courts