It scares me when I have spent hours upon hours doing research into the behaviors of the American federal judicial system and after fully digesting the U. S. Supreme Court cases of 07-1015_Ashcroft v Iqbal and 05-1126_Bell Atlantic Corp v Twombly et al … I find it a bit disconcerting when I talk to attorneys about their experiences in federal court and they tell me that suicide would be a better alternative.
From recent white papers I’ve read on the subject, legal scholars have pegged the federal judiciary as nothing more than glorified “case managers” … and the most recent article posted by the American Bar Association confirms my suspicions when I read that judges now want to eliminate discovery in cases involving less than $500,000! The average homeowner’s residence in this country is less than that sum, so what does that say for your due process rights in courts of limited jurisdiction, which the federal courts are?
If this was not a significant assertion, made by a 3rd U.S. Circuit Court of Appeals judge at a Federalist Society panel last month, I would have dismissed the white papers I read as speculation backed by demonstrative case law.
(Hon. Thomas Hardiman)
This judge received applause for his remark to the panel when he said, “If I were to do something unilaterally, I would probably institute a new federal rule that said all cases worth less than $500,000 would be tried without any discovery.” Another 6th Circuit judge, Hon. Amul Thapar, another judge said to be on President Trump’s short nominee list to the Supreme Court, said that clients and their lawyers would both be happier if they could get to trial more quickly, to which Hardiman added that because vanishing jury trials in federal courts are more common, judges have put increasing reliance on alternative dispute resolution, stating, “How many clients win, and the judgment they earned was less than the fees they paid their lawyer? That’s a Pyrrhic victory.”
What then does that say for the idea that banks are so willing to remove foreclosure cases to federal court because they already are aware of the outcome (a 12(b)(6) dismissal)? Yet, homeowners are so eager to file cases in federal courts using federal questions and statutory violations like TILA and RESPA, when the actual damage suffered has yet to be determined.
Other judges attending the panel discussion also noted that federal rules already require that discovery be “proportional to the needs of the case”. Others stated that “discovery is a key element of our current adversarial system, often leading to obtaining evidence of legal violations via admissions in sworn testimony, smoking-gun documents or memos that demonstrate wrongdoing.”
While the federal system has apparently recognized abuse in the discovery process, their roles as case managers appears to be expanding so they can rid their dockets of garbage lawsuits, citing one means of doing so is by implementing a civil Brady Rule, which basically promotes the idea that in civil litigation, the parties would have an affirmative obligation to turn over discovery, even if it’s harmful to them! Under the status quo, such damning evidence might get buried under a pile of evidence like “a needle in a haystack”.
This would imply (at least to me in my non-lawyer mindset) that I’m not going to get a fair shake in any federal court anywhere in the United States of America because everyone’s simply looking to find ways to chuck my hard work … case in – case out … by applying case management standards, mediation and when necessary, applying the “big stick” of sanctions if I insist on my due process rights to discovery.
It’s no wonder the banks play their crooked games in state court. They know they’ve got a “back door” if the homeowner responds with removal to federal court or comes forward in the state court action with something that could hang the banksters and their lawyers out to dry. When threatened, the bank’s lawyers remove the case to federal court, because most cases involve an out-of-state lender and/or servicer and an amount necessary to sustain diversity jurisdiction ($75,000). This is why class actions are starting to be frowned upon at the federal level. Boutique law firms can get rich off the backs of our dilemmas! Examine the number of FCRA and FDCPA actions being filed singularly versus class action and you’ll see what I mean as to the treatment they get. And these are statutory violations that mandate federal district level filings!
Lazy man’s way out, I say!
If no one wants to get to the truth, why do we keep supporting this federal justice system by electing folks who nominate and vote them into permanent judicial status, giving them loads of inherent power, when you can’t get a fair shake? What a waste of tax dollars!
It’s a Catch 22 of “feeding the monster” that at a point in time will devour us! This is why I advocate keeping your cases on the “local level” and letting “the system of things” do what it’s supposed to do.