The "booby-trapped filings" experiment




3 out of 6 judges rejected motions without reading them

Bennett Haselton, 2006/10/08

In 2003, after about two years of filing occasional anti-spam and anti-telemarketer cases in Small Claims Court, I got the impression that most judges were not taking the cases seriously, something corroborated by other occasional spammer-suers like Ben Livingston, Bruce Miller, Joel Hodgell, and others. So I did an experiment to see what percentage of judges were even reading motions (i.e. legal papers) that were filed by members of the public.

In all but two of the cases, I did the experiment by filing a short legal motion (i.e. no more than 4 pages, and that's double-spaced so it's really more like 2, so no using the excuse that "it was too long"!), which were "booby-trapped" with two of the pages attached together in the center. To attach the two pages, I would make two holes with a thumbtack, then run a tiny sliver of paper through the holes and attach it with white-out on either side. That way, if the judge turned the pages to read the motion, the thread would break. After I got a letter saying the judge had ruled on the motion, I could go to the courthouse and ask to look at the file to see if the pages were still attached together.

In two cases, I had to do something different. With Judge Nault, the courthouse had told me about that time that they would be moving towards optically scanning all papers that they received, which meant I couldn't use the thread-of-paper trick to see if he read the motion or not. So instead I put a sentence in the middle of the motion that said "Next time I'm in court I'll ask about a word to make sure you read this motion all the way through, and the word is computer." With Judge Michael J. Fox, I had the booby-trapped motion all ready to go, when I received a letter saying that Judge Fox had dismissed the case 9 days before the deadline for filing briefs, so that, according to his clerk, he could go on vacation. (Thus he gets counted in the "didn't read it" column.)

I did the experiment with a total of 6 judges. (The opportunities for doing the test with different judges were rare, because if you file multiple cases in the same courtroom, you'll usually get the same judge.) In 3 out of those 6 cases, the judges did not read the briefs.

The judges who did read the motions I filed were:

(Of those three, Judge Stewart was the only one who granted my motion, but the experiment was to see which judges were even reading the motions, not how they ruled on them.)

The judges who did not read the motions were:

Of those three, Karlie Jorgensen was the only one that I filed a complaint against. I thought that Judge Nault and Judge Fox, despite the fact that they didn't read the motions (in Judge Fox's case, because he dismissed the case and went on vacation before I had a change to file mine), were still about average. (Indeed, once Judge Fox came back from vacation, he ended up reading my motion at a later hearing after all, even though by then it was too late since he'd already made his original ruling, and declined to change it.)

So now what?

3 out of 6 is not enough to get an accurate percentage, but it's enough to show that it's a fairly regular occurrence. I'm not sure what sort of reforms could improve the current situation. It wouldn't do any good for people to just do more experiments like this in the future, because then judges will just start making sure that they turn the pages on everybody's motions in case any of the pages were stuck together, and scan through the motions to look for any "What's the word on the end of this sentence?" traps, but that doesn't mean they'll actually read the motions or take them seriously.

My suggestion is that the legislature should sponsor more experiments that are not identical to this one but in the same spirit. For example, actors could be hired who would pretend to be filing cases to be heard by different judges, where one actor would pretend to be a plaintiff represent themselves, and the other would pretend to be a lawyer representing someone else. If the judges granted the exact same request more frequently when they thought it was coming from a lawyer, the judges could be sanctioned for violating their own code of ethics, which demands that they treat everyone equally.

What I think the current experiment shows is that the existing safeguards are not enough. To think that the situation can be fixed by electing new judges, or filing complaints with the Commission on Judicial Conduct, is to miss the point -- those safeguards already exist, and they didn't prevent the current situation, where about half of all judges are dismissing complaints from members of the public without reading them.