Court Calls for More

June 12, 2014

Our Court of Appeals in Chicago continues to push for more, from advocates and trial judges. More evidence, more facts, more data, and more non-legal research.

When the judges in the Seventh Circuit do not find answers in the record, they express frustration over how the case was presented to them for review. Late year, for example, the Court of Appeals repeatedly criticized the Bar for its poor handling of scientific proof. More recently, in an overtime appeal in the Seventh Circuit, one of the judges conducted his own experiment in his Chambers – for demonstrative purposes only, he said – to see how long it would take a worker to change into safety gear (which was one of the key factual disputes in the case). Mitchell v. JCG Industries, Inc., 745 F.3d 837 (7th Cir. 2014), and 2014 U.S. App. LEXIS 10073 (7th Cir. May 28, 2014) (denying en banc review). And during the en banc review of a decision involving an international price-fixing cartel (Motorola Mobility LLC v. AU Optronics Corp., 746 F.3d 842 (7th Cir. 2014)), the Court of Appeals asked the Solicitor General for the views of the United States (a non-party) regarding whether the lawsuit implicated vital foreign interests (see Order dated June 2, 2014, in Appeal No. 14-8003). The Court also accepted submissions from several foreign governments (also non-parties) regarding whether the lawsuit intruded on international economic policies.

In all of these instances, the Court acted out of frustration, with an implicit criticism that the litigants had presented an unhelpful record on appeal.

In another example of this ongoing frustration, the Court of Appeals issued an opinion in United States v. Siegel, 2014 U.S. App. LEXIS 9889 (7th Cir. May 29, 2014). The Siegel case asked when a trial judge may impose particular conditions on the supervised release of a criminal defendant. (In Siegel, the supervised release orders required the defendants to avoid “mood-altering substances” and to complete treatment for mental illness, among other conditions.) In its opinion, the Court of Appeals cited more than two dozen academic articles on recidivism, none of which were discussed in the parties’ briefs. The Court’s research covered criminology topics such as whether viewing pornography encourages sex crimes, whether particular foods can be “mood-altering” substances, and whether cognitive behavior therapy is effective in reducing recidivism. “The academic studies of recidivism are unfamiliar to most judges and often difficult for a judge who lacks a social-scientific background to evaluate,” the Court of Appeals found. Further, the Siegel opinion pointed out, most advocates do not cite scientific proof when making sentencing recommendations.

The Siegel opinion is a remarkable opinion, in its tone and in its sweeping recommendations for future sentencing proceedings. It is noteworthy for those with a criminal law practice. But for the rest of us, what are the lessons from Siegel?

First, it is not always easy to predict which issues in an appeal will pique the Seventh Circuit’s interest. The best advocates will try to identify those issues, and will be prepared to engage the Court’s curiosity.

Second, the Court of Appeals remains ready to challenge some of the long-accepted traditions in federal court practice. Some traditions – such as how trial judges decide to impose conditions on supervised release – have never been tested against the scientific literature. Are there other traditions that are ripe for the same scrutiny?

And third, the Seventh Circuit continues to send the message that more is better. More data, more research, more facts. Sometimes, the Court of Appeals will rely on authority that is outside-the-box for most appellate litigation. On occasion, the Court of Appeals will even conduct its own research beyond the case law.

So long as the Court of Appeals is demanding more, this Circuit will remain a vibrant and challenging place to practice.


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