Judicial Fact Finding Run Amok: Judge Posner’s Judicial Fashion Shows

March 21st, 2014

Under the Federal Rules of Appellate Procedure, the record on appeal is limited to the original papers and exhibits filed in the district court.” That’s it. Lawyers are not allowed to introduce new facts and exhibits outside the record. Yet, this rule has been totally lost on Judge Posner, who has deemed it appropriate to hold a fashion show in chambers because a fact wasn’t clear in the record below.

Mitchell v. JCG Industries was a labor case involving the amount of time it takes to doff and don protective gear. In the majority opinion, Judge Posner noted that the district court did not opine on how long the process took, and added “The limitations of the trial process as a method of finding certain types of fact must be recognized.”

The district judge did not opine on how long the donning and doffing take, a question difficult to answer in the usual way of judicial fact determination. The plaintiffs would testi‐ fy that it takes 10 to 15 minutes, the employer that it takes only 2 to 3 minutes, and how would a judge or jury know who was telling the truth? The plaintiffs could be filmed changing, but their incentive would be to dawdle; the com‐ pany could doubtless find a few speed demons among the workers. The limitations of the trial process as a method of finding certain types of fact must be recognized.

District court judges, when sitting as finders of acts, are entrusted to determine who is “telling the truth.” That is why findings of fact are subject to such a deferential standard of review on appeal. We trust district judges to find the facts, so appellate judges don’t have to. If a judge finds that plaintiffs are dawdling, or the company was speeding, perhaps an expert donner/doffer could be appointed. (Why not?).

If the factual record was inconclusive, the proper result would have been a remand, because there is a genuine issue of material fact in dispute, and under Rule 56, summary judgment was not appropriate. Posner assumes that the judge could not possibly make a determination of the correct timing  of the donning/doffing method–yet he is comfortable with doing it himself. The primary difference, is that if the district court appointed expert donner/doffers, both parties could have participated in the fashion show, making the proceeding open and adversarial, rather than behind closed doors. (Though, I suspect Posner would add that a remand would be a waste of time and money, and that the 7th Circuit should just resolve the issue now.)

So, rather than simply relying on the factual record, which offered differing accounts of how long the process took, Judge Posner took matters into his own hands, or more accurately, his own chambers, and held an Article III fashion show.

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 re‐ move 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 in‐ experienced donners/doffers of the items in question.

Oh where do I even begin. It is contrary to every rule of appellate procedure for judges to re-enact facts in evidence. You can’t do this. There’s a reason why it is a “novel approach.” In the two centuries of Article III, appellate judges have not done this ! From a practical perspective, how is this even valid? How the hell are Judge Posner’s three law clerks (probably one year out of law school) supposed to know how workers at a plant “would” don and off equipment. He admits they are inexperienced donners and doffers. Have any of them ever worked at a plant, or seen this being done? Perhaps there are other factors that contribute to this process, totally unbeknownst to a few kids in their 20s.

Judge Posner stresses that this is not “evidence” but “confirms the common sense intuition.”

This was not “evidence”—the intention was to satisfy cu‐ riosity rather than to engage in appellate factfinding—but it is information that confirms the common sense intuition that donning and doffing a few simple pieces of clothing and equipment do not eat up half the lunch break. (If it did, the lunch break might well not be bona fide; but as we said the plaintiffs do not argue that it is not bona fide.) 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.

Appellate judges are not supposed to make decisions of facts based on “common sense intuitions” when this is something that could have been factually determined. We aren’t talking about the application of some sort of equitable proceedings that appeal to a judge’s intuitions. This is a discreet question.

Oddly enough, Judge Posner looks to no one else but his nemesis, Justice Scalia, for approval. This isn’t the first time Judge Posner held his own fashion show in an appellate case. In Sandifer v. United Steel Corporation, Judge Posner included in his opinion a photograph of a “man” (almost certainly a law clerk) dressed up in the protective gear at issue.

The alleged clothes consist of flame-retardant pants and jacket, work gloves, metatarsal boots (work boots containing steel or other strong material to protect the toes and instep), a hard hat, safety glasses, ear plugs, and a “snood” (a hood that covers the top of the head, the chin, and the neck). These work clothes are in the record, and since a picture is worth a thousand words, here is a photograph of a man modeling the clothes:


Doesn’t he look strapping.

Posner’s opinion was affirmed this year by the Supreme Court, per Justice Scalia no less, and Posner cites this approval as a blessing of his practice.

Regarding the propriety of visual imagery in a judicial opinion, we note the Supreme Court’s reference in a footnote in its Sandifer opinion to a photograph in our opinion. The Court (which affirmed our decision unanimously) said: “the opinion of the Court of Appeals provides a photograph of a male model wearing the jacket, pants, hardhat, snood, gloves, boots, and glasses. 678 F.3d, at 593.” 134 S. Ct. at 874 n. 2. There is no note of disapproval, even though the photograph was not in evidence.

I’m not sure that citing this is evidence of approval or disapproval. In this event that it is not disapproval, I think the Court was wrong to sanction this. In fact, Justice Breyer is the Judge Posner of the Supreme Court. He cites facts from “the Internet” and admitted that because the record wasn’t clear he “googled it.”

Chief Judge Wood was not amused.

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 con‐ sidered as evidence in the case. To the extent (even slight) that the court is relying on this experiment to resolve a dis‐ puted 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 pro‐ ceeded on the assumption that washing is not essential for workers handling raw poultry—an assumption I have al‐ ready shown to be inconsistent with government regulations for hygiene within a meat processing plant.

She finds that a remand is appropriate, and the case should have proceeded to trial.

In short, the amount of time at issue is a question that must be developed at trial; no amount of common sense, internet research, or personal experience can substitute for that.

In discussions of judicial ethics, whenever someone questions whether a judge can do X, the answer invariably is, “Well, Judge Posner does it.” That can’t be the correct answer. Judge Posner, sui generis in every respect imaginable, cannot and should not be held up as the baseline for what is and is not proper for judges.