Donning and Doffing More Than His Robe, Judge Posner Tries an Experiment in Chambers

18 March 2014 Wisconsin Appellate Law Blog

At the end of every episode of the People’s Court, viewers were admonished: “Don’t take the law into your own hands. You take them to court.” But what happens when you do take them to court, and the judge takes the facts into his own hands?  This afternoon’s decision from the Seventh Circuit in Mitchell v. JCG Industries, No. 13-2115, provides the answer.

Appellate judges often lament that they are limited by their reliance on a cold record and an inability to develop facts for themselves. Frequently, courts will highlight a perceived missing piece of information and remand a case to the trial court, perhaps with directions to fill in the missing gap. But on the Seventh Circuit, Judge Richard Posner has been a foremost advocate for judges – even appellate judges – filling in those gaps themselves. His use of independent online research is well known, including, for example, his use of Google Maps in a criminal case to research the site of a shooting.

But he may have taken this practice to a new level with his opinion in Mitchell v. JCG Industries. The lawsuit involved a dispute over whether employees were entitled to be paid for certain time spent donning and doffing clothing and protective gear in a poultry-processing plant. Among the disputes in the case was how much time the employees actually spent performing the activities. The plaintiffs claimed they spent 10-15 minutes of every lunch period performing the activities, while the employer said it all took 2-3 minutes. Each side entered affidavits regarding the time spent in the summary judgment record based on their personal knowledge:  the employees from actually performing the activities, and the employer from supervising and watching the employees.

Judge Posner laments, “how would a judge or jury know who was telling the truth?” In most cases, the parties would present their evidence at trial, and the fact finder would try to sort out the truth. But in this case, the court tried “a novel approach”:  an experiment! One judge on the panel purchased the actual clothing and equipment worn by the employees (we’re told “it is inexpensive”) and had “three members of the court’s staff” don and doff the equipment while being videotaped. The experiment revealed that it took just under two minutes to don and doff the gear.

Judge Posner is quick to reassure the reader that “[t]his was not evidence – the intention was to satisfy curiosity rather than to engage in appellate factfinding,” yet the court appears to rely on the experiment as confirming its “intuition” that the plaintiffs’ time claims were bogus. This intuition or experiment allowed the court to reject the plaintiff’s claims that they spent so much time donning and doffing.

Chief Judge Diane Wood, in dissent, was unimpressed. She goes so far as to say that she is “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.” She rejected the idea of any reliance, no matter how slight, on such experimentation to resolve an otherwise disputed fact.

Time will tell whether there is a role for this sort of judicial experimentation. On one hand, by thinking creatively, courts give themselves the tools to resolve claims that defy their logic and experience. As Judge Posner writes: “Common sense has a place in adjudication.” On the other hand, the idea that a court can resolve a case behind closed doors through an experiment that neither party has even proposed, much less participated in, raises the question of what limits are in place to restrict a court from taking the facts into its own hands.

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