Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 82 C 349 - Allen Sharp, Judge.
Posner and Flaum, Circuit Judges, and Marovitz, Senior District Judge.*fn*
Murray Biscuit Company, a producer of cookies and crackers, terminated Morrison, one of its wholesale distributors, who responded by suing Murray Biscuit under section 1 of the Sherman Act, 15 U.S.C. § 1. The suit charges that Morrison was terminated pursuant to a conspiracy between Murray Biscuit and Feldman, a food broker, to suppress price competition between Feldman and Morrison. From a judgment for the defendant entered after a purported bench trial, 617 F. Supp. 800 (N.D. Ind. 1985), Morrison appeals, raising a procedural question as well as substantive questions of antitrust law.
The procedural question is whether the judge denied Morrison his right to a trial. The judge's opinion states that after waiving their right to a jury trial "the parties stipulated that the evidence on the issue of liability would consist of the exhibits admitted in evidence and the depositions published and admitted in evidence." But did they stipulate to this? There was no written stipulation; the judge apparently had in mind the discussion at a status conference held shortly before the bench trial was to begin. The failure to put the supposed stipulation in writing leaves us with the wearisome task of drawing inferences from the transcript of the protracted conference.
At the conference the lawyers and judge agreed that damages would be determined (if necessary) after liability. The judge pressed counsel to stipulate to the facts on liability and "brief them, and then I will give you oral argument in lieu of -- you know, I will give you that much Court time and then I will decide it. Then we will see what happens. Now why should you parade all these witnesses in here to prove the obvious?" Morrison's counsel replied, "I don't think we need to parade very many witnesses. I think we have agreed in the pretrial order that certain witnesses are going to testify by deposition." The judge then looked through the depositions and said, "I propose to admit all of those depositions in evidence as part of the evidence before the Court in the bench trial of this case in toto. Objections? Then you can argue them and stipulate and fuss and fume. But I am going to take you off of your trial setting. I will tell you that right now." Murray Biscuit's counsel did not object. Morrison's counsel said that his "only problem is that was a discovery deposition of Mr. Morrison by the defendant. I told him as I tell all clients that if a question wasn't asked he didn't have to answer it, and there may be questions we would want to get in through him that aren't in there." The judge replied, "Let's get it filed, admit it into evidence, and we will see what you need to do. . . . Be realistic. You are all busy. As soon as you are out of here somebody else is yelling at you and you are trying to satisfy them. . . . I am taking you off the trial calendar, however. I am telling you that right now. It is not because of anything you have done. I am not going to be here."
The discussion then turned to a missing deposition, which the judge urged counsel to file. Morrison's counsel replied: "I don't think there is any problem." The judge said, "When we have all this before us where are we as far as evidence is concerned in the case?" Morrison's counsel replied: "I don't think there are any objections on either side to the other's exhibits with the exception of the fact that in my packet of evidence and again I didn't bring it over today thinking we were going to have a trial I have a plaque that will be" -- at which point he was interrupted by the judge's saying, "Haven't you learned we are full of surprises over here." Counsel replied, "I am learning in a big hurry. We have a plaque that will be admitted in lieu of a photograph."
After admitting some more evidence the judge said, "Now having all this in the record what do we need. I am going to give you oral argument. . . . Let me know since I have surprised you all, but I think probably haven't hurt anybody, and I have accomplished something for myself as far as calendaring is concerned. . . . Your record ought to be -- and you know I am not foreclosing the idea that you cannot supplement this record by some agreement or something. Seems like to me by the time you get this last deposition in and all your exhibits goodness gracious you ought to have everything you need." The judge then set a schedule for briefing and oral argument, and wound up the discussion by saying, "I am telling you I saved you all time and money and I didn't hurt anybody's rights. If you have a big complaint about what happened, why, you know, look back after it is all over and say, Hey, you didn't do something right, and tell me about it right away so we can correct it."
This conference was held on March 5, 1985. The parties duly filed their briefs, and oral argument was heard on August 8. The district judge rendered his decision in favor of the defendant a month later. The plaintiff filed no post-trial motions.
Morrison's counsel argues that the judge coerced him to give up his right to a trial (the judge twice said he was taking the case off the trial calendar), even though counsel had made clear to the judge that he wanted an opportunity to examine Morrison more extensively than his opponent had done at Morrison's deposition. The objection to short-circuiting the trial had indeed been made, but as so often happens in these conferences soon dropped from sight. By the end of the conference the judge could reasonably believe that the lawyers had consented to have him determine liability on the basis of the depositions and other documents, without live testimony, subject to the right of either party to request later that the record be supplemented. This resolution of the matter placed the burden on Morrison's counsel of asking to put Morrison on the stand or redepose him, and no such request was made. When counsel put together his brief in the district court he should have considered what if any gaps the record contained and should have taken the necessary steps to fill them by asking the judge to reopen the record. He did not do this. The judge's closing comment at the conference suggested that such a request might be timely even after he rendered his decision; but no post-trial motions were filed. By his inaction Morrison's counsel forfeited any objection to the judge's deciding the issue of liability on the basis of the documentary record agreed to at the status conference.
The judge was not acting improperly in suggesting that the parties allow him to determine liability on that record. The time available for trials in the district courts of this circuit is inadequate and efforts must be made to economize on it. The lawyers cannot be relied on always to do this, if for no other reason than that they do not bear the costs in delay which they impose on other litigants who want trials. It is inevitable in this era of staggering judicial caseloads that many trial judges will take a more aggressive role than has been traditional in this country in shaping and streamlining litigation, and one method of streamlining is to substitute documentary for live evidence. Some may object that the judge who takes the initiative in pressing the parties to agree to trial by documents is unconsciously imitating his Continental counterparts. See generally Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823 (1985). Whatever the abstract merits of these objections, they are unlikely to persuade. The rise of the "pro-active" judge, the search for cheap and fast substitutes for the conventional Anglo-American trial, the convergence of the American and Continental systems (see id. at 858-66; Resnik, Managerial Judges, 96 Harv. L. Rev. 374, 386 (1982)) -- all these developments are well under way and are probably irreversible.
Both reflecting and helping along this movement toward a larger role for the trial judge in shaping civil litigation, the amendments made in 1983 to Rule 16 (pretrial conferences) of the Federal Rules of Civil Procedure -- amendments applicable to this case even though the case started before they were adopted, see 97 F.R.D. 165 (1983) -- direct the district judge to play an expanded role in managing civil litigation before him. The conference on March 5 rapidly turned into -- in fact, though not in form -- a final pretrial conference, at which "the participants . . . shall formulate a plan for trial, including a program for facilitating the admission of evidence." Fed. R. Civ. P. 16(d). The transcript of that conference was, in effect, the final pretrial order. See Fed. R. Civ. P. 16(e). Although a formal pretrial order, in which several witnesses were listed for the plaintiff, had been entered almost a year earlier and was not formally modified, courts have never required formality when it comes to modifying pretrial orders, realizing that such a requirement would be incompatible with the pace, uncertainty, and sheer confusion of the litigation process. See, e.g., Gorby v. Schneider Tank Lines, Inc., 741 F.2d 1015, 1022 (7th Cir. 1984); Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 515 n. 9 (9th Cir. 1985); cf. United States v. First Nat'l Bank, 652 F.2d 882, 886 n. 3 (9th Cir. 1981). The parties and the judge may well have forgotten about the original pretrial order in this case.
It does not follow that because the judge is to take an active role in encouraging the parties to simplify and expedite the trial he may coerce them to give up their procedural rights; he may not; the distinction between suggestion and compulsion must be maintained. Some of Judge Sharp's remarks that we have quoted could be read as intended to intimidate (though it is equally possible that they were intended humorously -- a transcript does not convey tone of voice); and his repeated statement that he was taking the case off the trial calendar was peremptory. But as Morrison's counsel acknowledged at the oral argument of this appeal, he did not want a full trial; all he wanted was a chance to ask his client a few more questions and put the answers into the record, and we do not think that Judge Sharp's remarks, considered as a whole, can reasonably be understood as having ruled out so modest a supplementation of the record. Indeed, he expressly invited it. Morrison's counsel declined the invitation.
It would have been better if the judge had told the parties to put the stipulation that he had extracted from them (or perhaps just thought he had extracted) in writing. Then Morrison's counsel would have known exactly where he stood. The omission is unfortunate but is not reversible error. The responsibility for having dropped the ball was as much counsel's as the judge's. The case is less troublesome than May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1115-16 (7th Cir. 1986), where we found that the plaintiff had implicitly consented to a trial on the documents submitted with the cross-motions for summary judgment, or Stewart v. RCA Corp., 790 F.2d 624, 630-31 (7th Cir. 1986), where we found that the plaintiff had implicitly consented to a summary bench trial of a dispositive defense instead of the jury trial he could have claimed as his right. These cases show that important procedural rights can be forfeited by inaction and inadvertence as well as by express waiver (see also ...