Judge Posner's recent opinion in Mitchell v. JCG Industries, Inc. enters a Twilight Zone of appellate decisionmaking that is truly bewildering. The issue was whether the FLSA requires poultry workers to be paid overtime for "donning and doffing" protective clothing at the beginning and end of their lunch breaks. Judge Posner answered that question, in part, by timing how long it took three of the court’s staff to don and doff the clothing. The parties had submitted conflicting testimony about this precise issue at the summary judgment stage. Nonetheless, Judge Posner, joined by Judge Kaanne, affirmed the grant of summary judgment in the employer’s favor based in part on the results of the in-chambers experiment.

Judge Posner justified his reliance on this experiment on the grounds that it "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." It was, apparently, no obstacle that this "common sense intuition" contradicted the plaintiffs' sworn statements that the activity took 10 to 15 minutes.

Judge Posner acknowledged that "[t]he district judge did not opine on how long the donning and doffing take." Indeed, he believed that was "a question difficult to answer in the usual way of judicial fact determination." But the only reason he gave for that difficulty is that each side in the case would have an incentive to provide an answer that favored their position. Judge Posner did not explain why that incentive distinguished this factual issue from nearly any other one.

According to Judge Posner, "[t]he limitations of the trial process as a method of finding certain types of fact must be recognized." The solution in this case was an in-chambers, post-argument experiment conducted on appeal outside the parties' presence. Judge Posner noted the experiment was not "evidence," but then then relied on it to confirm his intuition that "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." Again, that “intuition” contradicted the testimony of the people who actually did those activities each workday.

Judge Wood dissented. In the judicial understatement of 2014, she wrote, "I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a postargument experiment conducted in chambers by a judge. . . . The record here leaves no doubt that the parties do not agree on the central question of the amount of time it takes at these workplaces to don and doff the required clothing and equipment and to wash up. . . . This is as material a dispute of fact as I can imagine, and thus one that should have prevented disposition on summary judgment."

Judge Wood has the right of it. Whatever role common sense must or should play in the judicial decisionmaking process, we are far beyond those bounds here.