Over a century ago, in 1906, law professor Roscoe Pound outlined “The Causes of Popular Dissatisfaction with the Administration of Justice” in a speech to the American Bar Association. After conceding “dissatisfaction with the administration of justice is as old as law,” Pound went on to perform a “diagnosis” of the “more than the normal amount of dissatisfaction with the present-day administration of justice in America.”

One particularly “potent source of irritation” was “our American exaggerations of the common law contentious procedure,” which produced a bizarre, unjust, and “sporting” sense of justice:

It grants new trials because by inability to procure a bill of exceptions a party has lost the chance to play another inning in the game of justice. It creates vested rights in errors of procedure, of the benefit whereof parties are not to be deprived. The inquiry is not, What do substantive law and justice require? Instead, the inquiry is: Have the rules of the game been carried out strictly? If any material infraction is discovered, just as the football rules put back the offending team five or ten or fifteen yards, as the case may be, our sporting theory of justice awards new trials, or reverses judgments, or sustains demurrers in the interest of regular play.

Pound’s discussion about the inherent lawlessness of a “sporting” justice system — one that over-emphasizes procedural “correctness” and judicial “umpiring” as if justice were a game — feels like it was written in our time, not over a hundred years ago:

The effect of our exaggerated contentious procedure is not only to irritate parties, witnesses and jurors in particular cases, but to give to the whole community a false notion of the purpose and end of law. Hence comes, in large measure, the modern American race to beat the law. If the law is a mere game, neither the players who take part in it nor the public who witness it can be expected to yield to its spirit when their interests are served by evading it. And this is doubly true in a time which requires all institutions to be economically efficient and socially useful. We need not wonder that one part of the community strain their oaths in the jury box and find verdicts against unpopular litigants in the teeth of law and evidence, while another part retain lawyers by the year to advise how to evade what to them are unintelligent and unreasonable restrictions upon necessary modes of doing business. Thus the courts, instituted to administer justice according to law, are made agents or abettors of lawlessness.

Today, when such concerns are dismissed, and the view of judges as “umpires” is claimed to be an ideal. A Century ago, it was different. Back then, Pound’s complaints were taken seriously, and they helped set in motion the process that lead to the creation of the Rules of Civil Procedure in 1938, which included, right at the beginning, the all-important Rule 1:

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

The law was not supposed to be a game. And, yet, it often is. Let’s look at some recent examples.

First up is Husky Ventures, Inc. v. B55 Investments, Ltd., a published, precedential decision from the Tenth Circuit (Case No. 17-6034, December 18, 2018). The case is a dispute between companies that were trying to extract oil and gas from fields thought to be depleted. B55 stirred up trouble and didn’t honor its agreements. Husky Ventures sued, and a jury award Husky Ventures $4 million in compensatory damages and $2 million in punitive damages against B55 and its President. Reading the opinion, it seems the jury was right to do so, but the defendant had a right to appeal.

After judgment was entered against them, B55 filed a timely notice of appeal and a motion for a new trial, which was denied. That quite reasonable course of action proved fatal for most of their arguments, because they did not go back and amend their notice of appeal to include the order denying their motion for new trial:

On appeal, B55 and Mr. McArthur’s first three claims of error concern the district court’s order denying their motion for a new trial. For example, in specifying the appellate issues, they ask: “Did the District Court err by denying B55’s motion for new trial because of the errors in the verdict form and final judgment which awarded liability on a joint and several basis rather than a several basis?” Before we consider the merits of these claims, however, we must determine whether we have appellate jurisdiction to do so. Given that B55 and Mr. McArthur did not file a new or amended notice of appeal addressing this denial of relief, we conclude that we lack appellate jurisdiction over these claims.

By the time the case was being briefed for the Tenth Circuit, it was far too late to amend the notice of appeal. B55 tried the common sense argument “in this case, there is nothing new in the order denying the motion for new trial that changes or alters the judgment or rulings made by the district court” and it got them exactly nowhere. The Court decided against them, saying:

That argument is untenable in light of the plain text of Appellate Rule 4(a)(4)(B)(ii), which speaks of the order being challenged, not the issues raised in the specified post-judgment motions. See FED. R. APP. P. 4(a)(4)(B)(ii) (“A party intending to challenge an order disposing of [a Rule 59(a) motion] . . . , must file a notice of appeal, or an amended notice of appeal . . . .” (emphasis added)). And the rule certainly does not speak to whether the issues presented in those motions might also have been properly the subject of an appeal from the final judgment. Having elected in their appellate briefing to frame three of their claims of error as challenges to the district court’s order denying their Rule 59(a) motion for a new trial, B55 and Mr. McArthur must abide by the consequences of doing so.

Chalk up another victory for the “sporting theory of justice,” in which the law is considered such a game that a party can lose and be penalized for filing an appeal, arguing the important issues, but failing to file a pro forma single-sentence document.  

This “sporting” attitude isn’t limited to disputes between oil extractors. Just this week, in the RoundUp litigation, in which plaintiffs allege that the glyphosate in RoundUp caused them to develop non-Hodgkin’s lymphoma, Monsanto convinced the court overseeing the multi-district litigation to “bifurcate” the trial, so that it’s really two trials: a trial solely on “causation” and then, if plaintiffs prevail, a trial on “liability” and “damages.” This is akin to splitting up a murder trial so that the prosecution first has to prove whether the defendant could have committed the murder, without allowing in evidence of the defendant’s motive and their actions to conceal the crime.

The key evidence in question in the RoundUp case involves Monsanto’s extensive efforts to influence regulators and to manipulate public opinion. The court’s two-page opinion tosses this evidence aside, justified by the sporting theory of justice:

The plaintiffs assert that this type of bifurcation is unfair because jurors will be left wondering, during the causation phase, how glyphosate could possibly be dangerous if it has gone largely unregulated for decades. But this relatively minor concern is best addressed by an instruction to jurors that they must not defer to regulatory agencies, and must instead reach their own judgment based on the evidence presented at trial. This concern is further obviated by the likelihood that jurors will learn during the causation phase that IARC has classified glyphosate as a probable carcinogen. In arguing against bifurcation, the plaintiffs assume that evidence of the IARC classification would be inadmissible during the causation phase. Although the Court will reserve final judgment on this question until the pretrial conference, it seems likely that jurors will, during the causation phase, need to receive at least some limited information about the IARC classification through expert testimony (albeit with an appropriate instruction about its limited utility in this context). In addition, if the plaintiffs have evidence that Monsanto manipulated the outcome of scientific studies, as opposed to agency decisions or public opinion regarding those studies, that evidence may well be admissible at the causation phase. Any such evidence will likely overlap with evidence of liability, but it will not be impossible, as the plaintiffs contend, to separate evidence of causation from evidence of liability.

The plaintiffs also assert that bifurcating causation from the remaining issues limits the informational value of the bellwether trials. But a trial court’s primary goal, even in an MDL bellwether, should be to conduct the fairest trial possible for the parties who are actually at trial.

Notice first how the sporting theory of law isn’t even consistently applied: the plaintiff’s concerns about a confusing, unfair partial trial with some of the evidence is dismissed as a “relatively minor concern,” whereas Monsanto’s desire to conduct a partial trial — leaving out the parts where they tried to manipulate the very “causation” evidence in question — is elevated to a necessary component of “the fairest trial possible.”

Then notice how the court has taken it upon itself to create a new sport within the sport: rather than simply admit relevant evidence at trial, as is the law, the court has generated a new task for itself in sorting out what evidence is relevant to causation and what is relevant to another issue. It is a one-sided game stacked against the plaintiffs, who have to withstand this arbitrary sorting of evidence.

Cases like these have strayed too far away from the principles that led to the system of legal rules we use today, making the courts once again, like Professor Pound warned, “agents or abettors of lawlessness.” People often complain that the law is tied too firmly to the past, but, sometimes, the problem is that the past has been forgotten.