Despite my great respect for Seventh Circuit Judge Richard Posner (whose brilliant writings on legal theory have shaped much of modern jurisprudence), I have recently had occasion to criticize his conduct on the bench (here and here). I am afraid that an opinion this week raises yet another troubling example of poor judgment by Posner. In an opinion in Mitchell v. JCG Industries and Koch Foods, Posner included an account of an experiment by court staff that tested a core factual issue presented by the Plaintiffs — the time needed to change into work clothes. The reliance — to any degree — on such an experiment violates core rules of appellate review and is correctly identified by fellow Seventh Circuit judge Diane Wood as a highly disturbing element to the decision supporting the company. What is odd is that this experiment with “donning” and “doffing” only undermined an otherwise well-considered opinion (even though many would still disagree with its conclusion).

The case involved a claim from workers that they were entitled to overtime pay for the time it took to put on and take off their work gear during lunch breaks. The workers claimed that takes 10 to 15 minutes of their lunch break to change out of and back into the clothing and protective gear. The company insisted that it took only a couple of minutes. Such factual disputes are the domain of the trial court. Judge Robert M. Dow, Jr. of the United States District Court for the Northern District of Illinois granted summary judgment in favor of the company — a decision that is only possible when you assume all factual disputes in favor of the non-moving party. That would presumably include this factual dispute.

Posner however revealed that his staff decided to carry out their own testing outside of the record — a highly improper action. Rather than reprimand such ad hoc actions, Posner made the results part of the decision:

One of us decided to experiment with a novel approach. It involved first identifying the clothing/equipment that the defendant’s plants use and buying it (it is inexpensive) from the supplier. Upon arrival of the clothing/equipment three members of the court’s staff donned/doffed it as they would do if they were workers at the plant. Their endeavors were videotaped. The videotape automatically recorded the time consumed in donning and doffing and also enabled verification that the “workers” were neither rushing nor dawdling.

The videotape reveals that the average time it takes to remove the clothing/equipment is 15 seconds and the average time to put it on is 95 seconds. The total, 110 seconds, is less than two minutes, even though the “actors” had never worked in a poultry processing plant and were therefore inexperienced donners/doffers of the items in question.

It is not clear if the “one of us” refers to Posner or the other judge in the majority, Judge Michael Kanne. The majority was quick to note that “This was not ‘evidence’ —the intention was to satisfy curiosity rather than to engage in appellate fact finding.” However curiosity has a way of killing cats and opinions. There is good reason for an en banc decision throwing out this opinion on the grounds of this experiment alone. (While the conclusion may ultimately be upheld, the opinion has to be altered to remove this material and evaluate the basis for affirmation after its removal). It sure looks like fact finding to me. And pretty lousy fact finding despite the citation of a “videotape” with a time marker. More importantly, it clearly was relied upon by Posner and Kanne to

confirm common sense intuition that donning and doffing a few simple pieces of clothing and equipment do not eat up half the lunch break. . . . The intuition is compelling; no reasonable jury could find that workers spend half their lunch break taking off and putting on a lab coat, an apron, a hairnet, plastic sleeves, earplugs, and gloves. What a reasonable jury could not find does not create a triable issue of fact.

What is most bizarre is that you do not have to engage in this type of experimental work to support the conclusion of the opinion. It was as unnecessary as it was injudicious.

Wood spares little time in dissent in chastising Posner and Kanne.

I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post argument experiment conducted in chambers by a judge. Ante at 9–10. As the majority concedes, this cannot be considered as evidence in the case. To the extent (even slight) that the court is relying on this experiment to resolve a disputed issue of fact, I believe that it has strayed beyond the boundaries established by Federal Rule of Civil Procedure 56. (This is quite different, it seems to me, from including an illustrative photograph whose accuracy presumably could not be contested.) I note as well that this experiment proceeded on the assumption that washing is not essential for workers handling raw poultry

I have long respected Wood and she is spot on with her criticism of the experiment. If anything, she is restrained in her criticism.

Just for the record, Rule 10 of the federal appellate rules state:

RULE 10. THE RECORD ON APPEAL

(a) Composition of the Record on Appeal. The following items constitute the record on appeal:

(1) the original papers and exhibits filed in the district court;

(2) the transcript of proceedings, if any; and

(3) a certified copy of the docket entries prepared by the district clerk.

Indeed, parties are often hammered for suggesting facts outside of the record. The rules state that “If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.”

It is also disturbing that the results of the videotape are simply described rather than making the video available for the review of the parties and the public. We are simply told that the court staff was neither “rushing nor dawdling.”

The inclusion of this ad hoc testing is a serious violation of appellate rules and should be addressed by the full court. It makes a mockery of the rules of federal practice and introduces an improvisational element to fact finding. The fact that two circuit judges would sign off on such an effort is shocking. As an Illinois bar member, I have great pride in the Seventh Circuit’s reputation for excellence. (Indeed, I will be speak at the Seventh Circuit conference in May). I have equal respect for Judge Posner and teach many of his theories in my torts class. However, this is truly beyond the pale and needs to be corrected by the entire court.

Source: ABA Journal