Appeal from the United States District Court for the Southern District of Illinois, No. 85-4159, James L. Foreman, Chief Judge. Published as Table Case at:,.
Wood, Jr., and Ripple, Circuit Judges, and Gordon, Senior District Judge.*fn*
In this appeal, we must decide whether a federal district court can require litigants to participate in a nonbinding summary jury trial. In a nonbinding summary jury trial, attorneys summarize their case before a jury, which then renders a nonbinding verdict. The purpose of this device is to motivate litigants toward settlement by allowing them to estimate how an actual jury may respond to their evidence. Thomas Tobin, Esquire, appeals from a judgment of criminal contempt for refusing to participate in such a procedure. We vacated the judgment by an order dated September 10, 1987, 830 F.2d 195; we now issue a full opinion.
Mr. Tobin represents the parents of [Text Deleted by Court Emendation] Michael Strandell in a civil rights action against Jackson County, Illinois. The case involves the arrest, strip search, imprisonment, and suicidal death of Michael Strandell. In anticipation of a pretrial conference on September 3, 1986, the plaintiffs filed a written report concerning settlement prospects. The plaintiffs reported that they were requesting $500,000, but that the defendants refused to discuss the issue. At the pretrial conference, the district court suggested that the parties consent to a summary jury trial. A summary jury trial generally lasts one day, and consists of the selection of six jurors to hear approximations by counsel of the expected evidence. After receiving an abbreviated charge, the jury retires with directions to render a consensus verdict. After a verdict is reached, the jury is informed that its verdict is advisory in nature and nonbinding. The objective of this procedure is to induce the parties to negotiate a settlement.*fn1 Mr. Tobin informed the district court that the plaintiffs would not consent to a summary jury trial, and filed a motion to advance the case for trial. The district court ordered that discovery be closed on January 15, 1987, and set the case for trial.
During discovery, the plaintiffs had obtained statements from 21 witnesses. The plaintiffs learned the identity of many of these witnesses from information provided by the defendants. After discovery closed, the defendants filed a motion to compel production of the witnesses' statements. The plaintiffs responded that these statements constituted privileged work-product; they argued that the defendants could have obtained the information contained in them through ordinary discovery. The district court denied the motion to compel production; it concluded that the defendants had failed to establish "substantial need" and "undue hardship," as required by Rule 26(b)(3) of the Federal Rules of Civil Procedure.
On March 23, 1987, the district court again discussed settlement prospects with counsel. The court expressed its view that a trial could not be accommodated easily on its crowded docket and again suggested that the parties consent to a summary jury trial. On March 26, 1987, Mr. Tobin advised the district court that he would not be willing to submit his client's case to a summary jury trial, but that he was ready to proceed to trial immediately. He claimed that a summary jury trial would require disclosure of the privileged statements. The district court rejected this argument, and ordered the parties to participate in a summary jury trial.
On March 31, 1987, the parties and counsel appeared, as ordered, for selection of a jury for the summary jury trial. Mr. Tobin again objected to the district court's order compelling the summary jury trial. The district court denied this motion. Mr. Tobin then respectfully declined to proceed with the selection of the jury. The district court informed Mr. Tobin that it did not have time available to try this case, nor would it have time for a trial "in the foreseeable months ahead." Tr. of March 31, 1987 at 5. The court then held Mr. Tobin in criminal contempt for refusing to proceed with the summary jury trial.
The district court postponed disposition of the criminal contempt judgment until April 6, 1987. On that date, the district court asked Mr. Tobin to reconsider his position on proceeding with the summary jury trial. Mr. Tobin reiterated his view that the court lacked the power to compel a summary jury trial, and maintained that such a proceeding would violate his client's rights. The district court entered a criminal contempt judgment of $500 against Mr. Tobin. Mr. Tobin filed a notice of appeal that same day.
The District Court Opinion
The district court filed a memorandum opinion setting forth its reasons for ordering a summary jury trial. Strandell v. Jackson County, 115 F.R.D. 333 (S.D. Ill. 1987) [hereinafter Mem. op.]; R.144. The district court noted that trial in this case was expected to last five to six weeks, and that the parties were "poles apart in terms of settlement." Id. at 334. ...