July 2007

WHY DO LAWYERS ELECT, OR NOT ELECT, TO HAVE MAGISTRATE JUDGES CONDUCT THEIR CIVIL TRIALS?

BY JOHN F. MURTHA, ESQ.

Federal Magistrate Judges’ Statutory Jurisdiction.

The Federal Magistrates Act, generally found at 28 USC §§ 631-639, governs the appointment, tenure, compensation and jurisdiction of United States magistrate judges.  The jurisdiction and general powers of magistrate judges are set forth in 28 USC § 636.  An amendment to the Federal Magistrate Act in 1979 granted full-time magistrate judges, or part-time magistrate judges who serve as full-time judicial officers, authority to conduct any or all proceedings in jury or non-jury civil matters.¹  Two conditions must be met before a magistrate judge may “conduct any or all proceedings” in a civil matter:  (1) The district court or courts he or she serves must designate the magistrate judge to exercise such jurisdiction; and (2) all of the parties to the litigation must consent.²

If a magistrate judge has been designated to exercise the jurisdictional grant set forth in 28 USC § 636(c)(1), the clerk of the court is to notify the parties of the availability of a magistrate judge to exercise such jurisdiction at the time the action is filed.³    Thereafter, either the district court judge or the magistrate judge may again advise the parties of the availability of the magistrate judge.⁴  The litigants are free to withhold consent to have a magistrate judge conduct all of the proceedings without adverse substantive consequences, and court rules for the reference of civil matters to magistrate judges are to include procedures to protect the voluntariness of the litigants’ consent.⁵

A district court on its own motion and for good cause, or upon a showing of extraordinary circumstances by any party, may vacate the reference of any civil matter to a magistrate judge.⁶

The jurisdictional grant authorizing magistrate judges to conduct all proceedings in civil matters includes the authority to enter judgment.⁷ Prior to 1997, parties were given the option of appealing a judgment entered by a magistrate judge to the district court, but that option was eliminated by the Federal Courts Improvement Act of 1996.⁸  Since 1997, an aggrieved party may appeal directly to the appropriate United States Court of Appeals from a judgment of the magistrate judge in the same manner as an appeal from any other judgment of a district court.⁹

In Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc.,¹⁰ the Ninth Circuit Court of Appeals held that “in light of the statutory precondition of voluntary litigant consent and the provisions for the appointment and control of the magistrates by Article III courts, the conduct of civil trials by magistrates [under 28 USC § 636(c)] is constitutional.”¹¹ Furthermore, all of the other Federal Circuit Courts of Appeal have upheld the constitutionality of 28 USC § 636(c).¹²

The Reality of Magistrate Judges’ Jurisdiction.

As noted previously, one of the prerequisites to a magistrate judge’s ability to conduct trials in civil matters is the designation of the magistrate judge to exercise Section 636(c) jurisdiction by the district court he or she serves.  In Nevada, this designation is set forth in Local Rule IB 2-1 (“The magistrate judges of this district are designated to exercise all jurisdiction in civil jury and non-jury cases pursuant to 28 U.S.C. § 636(c)”).¹³

Because a magistrate judge’s ultimate authority to conduct civil trials requires the district court to designate a magistrate judge to exercise such jurisdiction, the true limits of magistrate judges’ jurisdiction are determined by the various district courts.  The Honorable Valerie P. Cooke, one of the magistrate judges for the District of Nevada, has noted that the authority granted magistrate judges by the district courts varies significantly from district to district.  Judge Cooke reports that the authority granted magistrate judges by district courts is heavily influenced by the culture within the district.  For example, in some districts the magistrate judges are utilized solely to decide discovery disputes and non-dispositive pre-trial motions, while in other districts magistrate judges are automatically assigned to try civil cases unless a party objects.

Judge Cooke also reports that even if a district court designates its magistrate judges to exercise all of the Section 636(c) jurisdiction, attorneys’ perceptions of the customary roles of magistrate judges affects the jurisdiction actually exercised.  For example, magistrate judges in Nevada have been designated to exercise full Section 636 jurisdiction, but Judge Cooke notes that magistrate judges, at least in Northern Nevada, are primarily utilized for discovery disputes, non-dispositive motions and settlement or mediation conferences.  Judge Cooke has been on the bench since 1999 and she reports having conducted two or three jury trials and no bench trials.  She notes, however, that the Honorable Robert A. McQuaid, Jr., another magistrate judge for the District of Nevada, has conducted significantly more trials.  This difference could result from the experiences each magistrate judge brings to the bench:  Judge McQuaid was a seasoned litigator and Judge Cooke practiced primarily commercial law and bankruptcy litigation.

A Survey is Conducted.

The question is:  Why do litigants and/or their attorneys elect, or not elect, to have magistrate judges conduct their civil trials?  At least that is the question the Magistrate Executive Board (“MEB”) of the Ninth Circuit Judicial Conference asked the Lawyer Representatives Coordinating Committee (“LRCC”) of the Ninth Circuit in October, 2006.

Lawyer representatives serve as liaisons between the federal bench and bar and represent the bar before the Ninth Circuit Judicial Conference.  Lawyer representatives are appointed from all of the district courts in the Ninth Circuit and the LRCC coordinates the activities of the lawyer representatives.  The MEB’s request for information is just one example of how the federal bench and bar work together to address questions or concerns regarding the operation of the federal judiciary, at least within the Ninth Circuit.

In any event, the LRCC responded to the MEB’s inquiry.  A committee comprised of nine lawyer representatives created a survey that was designed to provide answers to the MEB’s inquiry.¹⁴   The survey was then circulated to all of the Ninth Circuit lawyer representatives (approximately 130 total).  The lawyer representatives were instructed that if they did not regularly practice in the federal courts in civil matters to have an attorney who does regularly practice in the federal courts complete the survey.  The survey was distributed in February 2007, and returned in March 2007.  Sixty-eight completed surveys were returned. The survey, consisting of a series of statements and choices to indicate one’s agreement or disagreement with the statement, and the percentage responses to the statements are presented below:¹⁵

MAGISTRATE JUDGES SURVEY

Total Number of Survey Responses (68)

Some of the results are interesting.  Surprisingly, it appears seven percent of the respondents never consent to have a magistrate judge conduct their civil trials (statement 2).  Also, nine percent of the respondents do not consent out of concern about negative repercussions in the event of an adverse decision (statement 4).  Not surprisingly, 69 percent of the respondents indicated the decision to have a magistrate judge conduct the trial is made by their clients (53 percent agreed with, and 16 percent strongly agreed with, statement 3).

Perhaps the most important factors influencing one’s choice to have, or not have, a magistrate judge conduct a trial are the district judge and the designated magistrate judge:  Sixty-one percent of the respondents agreed or strongly agreed that they consent to the use of a magistrate judge when they are told which magistrate judge is assigned to the case (statement 1) (and presumably they are satisfied with that person).  Whether the trial is to be a bench trial or a jury trial does not seem to significantly impact the decision:  Seventy-six percent of the respondents disagreed or strongly disagreed with the statement they would not elect to have a magistrate judge conduct their trial if it were a bench trial (statement 9), and 72 percent disagreed or strongly disagreed when the statement referenced a jury trial (statement 10). 

Fortunately, 84 percent of the respondents disagreed or strongly disagreed with the statement that magistrate judges are less likely than district judges to rule correctly (statement 8).  Unfortunately, however, 33 percent of the respondents agreed or strongly agreed with the statement that there are certain cases that should not be tried by a magistrate judge (statement 5).

In addition to responding to the survey statements, the respondents were asked to provide comments regarding their decision-making process when presented with the opportunity to have a magistrate judge conduct a civil trial.  Those comments are more telling, and easier to interpret, than the mere percentage responses of agreement or disagreement with the survey statements.

The factor reported most often as influencing one’s decision to have a magistrate judge conduct a civil trial was the ability to get to trial sooner.  Many of the survey respondents indicated that:  (1) quicker trial settings are available with magistrate judges; (2) magistrate judges are more readily available than district judges; and (3) magistrate judges seem to have less crowded trial dockets than district judges.  A quicker trial setting, however, can cut both ways.  One respondent noted that a quick trial may not always be in the best interest of his client and, therefore, he will sometimes elect not to have a magistrate judge conduct the trial. 

Closely related to quicker trials is certainty of trial dates.  Magistrate judges’ dockets are not encumbered with criminal matters as district judges’ dockets are and, therefore, once a trial date has been set with a magistrate judge, the likelihood of actually being able to go to trial on the scheduled date is significantly greater.  A more certain trial date was the second most often reported factor influencing the respondents’ decisions to elect to have a magistrate judge conduct their trial. 

The responses to the survey statement 1 indicate that knowing which magistrate judge would be assigned to the trial appears to be a significant factor in deciding whether to have a magistrate judge conduct the trial, and understandably so.  This observation is supported by the respondents’ narrative responses as well.  The third most frequently reported factor influencing decisions on whether to have a magistrate judge conduct the trial was knowledge of the magistrate judge and district judge assigned to the case.  The respondents reported that:  (1) the reputation of the magistrate judge; (2) perceptions of his or her sense of fairness; (3) knowledge of rulings by the magistrate judge in similar cases; (4) previous experiences with the magistrate judge and the district judge; and (5) the magistrate judge’s level of judicial experience are all important factors in making their decisions. 

Clients, or at least some clients, have perceptions regarding magistrate judges and Article III judges as well.  Several respondents indicated clients will, at times, elect to have the case tried by an Article III Judge and that sometimes clients “feel strongly” or “insist” that an Article III Judge conduct the trial.

For the most part, perceptions of the quality, abilities and legal skills of magistrate judges as compared to district judges were favorably reported.  Although an occasional negative comment regarding magistrate judges was received, of the comments made regarding ability, expertise, quality, etc., the great majority spoke very favorably about magistrate judges.  Some of the negative comments were:

Ø     The magistrate judges sometimes lack experience with substantive aspects of federal securities law.

Ø     The magistrate judges do not have as much experience as the district judges in patent, trademark and copyright cases.

Ø     I am less likely to consent in a complex case.

Some of the positive comments, which greatly outnumbered the negative comments, were:

Ø     Generally, both the district judges and magistrate judges are extremely competent and fair.

Ø     All of the magistrate judges in our district are excellent jurists, on par in abilities with our district judges.

Ø     In our district, the magistrate judges are as capable as the district judges, and all of them are first-rate.

Ø     The judges and magistrates in our district are, in my mind, indistinguishable in terms of temperament and competence (in a good way).¹⁶

If magistrate judges, as a group, are not conducting as many civil trials as might have been expected when 28 USC § 636 was amended in 1979 to grant them authority to conduct civil trials, it would not appear that their qualifications and abilities are the reasons for the unrealized expectations.

Conclusion.

So, are the results of the LRCC survey surprising?  Not really.  Lawyers and litigants like speedy resolution of their disputes, and increased certainty of actually going to trial when scheduled is always good.  The fact that knowing which magistrate judge would conduct the trial is a key factor in the decision-making process is also not surprising.  And finally, having faith in the abilities and qualifications of the judge that will decide your disputes is understandably an important factor for attorneys and litigants.

Are the results of the survey interesting?  Well, if you are still reading this article, maybe.  What could be the purpose in conducting the survey and reporting its results in this article?  One comment by one of the respondents might sum it up best:

We need to do a better job of educating lawyers about the abilities of our magistrate judges and the benefits of having them conduct civil trials.  Many lawyers do not consider the option and simply default to district judges for trial.

John F. Murtha is the president and managing shareholder of Woodburn and Wedge.  A member of the Nevada Bar since 1980, Mr. Murtha concentrates his practice on bankruptcy law and commercial litigation.  Mr. Murtha currently serves as a Lawyer Representative to the Ninth Circuit Judicial Conference for the District of Nevada.

1           28 USC § 636(c)(1).

2           Id.

3           28 USC § 636(c)(2).

4           Id.

5           Id.  For example, FRCP 73 which governs litigants’ consent for a magistrate judge to exercise section 636(c) jurisdiction provides that the district judge and the magistrate judge shall not be informed of a party’s response to the clerk’s notification unless all parties consent to the referral.

6           28 USC § 636(c)(4).

7           28 USC § 636(c)(1).

8           14 Moore’s Federal Practice, 3d § 73.06, p. 73-22.  The effective date of the elimination of the option to appeal to a district court judge was January 19, 1997.

9           28 USC § 636(c)(3).

1⁰          725 F.2d 537 (9^th Cir. 1984), cert. denied 469 U.S. 824, 83 L.Ed.2d 45, 105 S.Ct. 105 (1984).

1¹          Id. at 540.

1²          The cases are compiled at 14 Moore’s Federal Practice 3d, § 73.02, p. 73-6, footnote 3.

1³          The procedure for notification by the court clerk and consent by the litigants is set forth in Local Rule IB 2-2, and the litigants’ appeal rights are set forth in Local Rule IB 3-4.

¹⁴          The survey committee members were:

                        Elana Baca, Esq.           Central District of California

                        Kevin Bonner, Esq.        District of Arizona

                        Judy Ramseyer, Esq.    Western District of Washington

                        Kelly Zusman, Esq.        District of Oregon

                        Jay Spillane, Esq.          Central District of California

                        Robin Lewis, Esq.          Central District of California

                        Joseph M. Meier, Esq.   District of Idaho, Incoming Chair of the LRCC

1⁵          The survey statements were drafted by lawyers, not professional poll-takers or statisticians.  Clearly the lawyers who drafted the survey questions did so as thoughtfully and carefully as possible, but there is no guarantee of any particular degree of statistical significance in the results.

¹⁶          The reference to “judges” and “magistrates” presents a good opportunity to mention the proper manner of addressing magistrate judges.  Magistrate judges are judges and are properly referred to with the titles of “Judge” or “Your Honor” in and out of the courtroom the same as with the district judges.