Thursday, October 04, 2012
Civil Justice Reform after the Duke Conference
Two weeks ago, I attended the Third Civil Justice Reform Conference sponsored by the Institute for the Advancement of the American Legal System (IAALS). (Full disclosure: I served as IAALS’s Director of Research before entering the academy.) The conference offered a chance to look back at the seminal themes of the Litigation Review Conference at Duke Law School in 2010, and assess the progress that has been made since then. The full agenda from the IAALS conference is here.
A major theme of the Duke conference was that civil litigation has become too expensive and time-consuming for some cases, forcing parties to settle claims for reasons unrelated to the merits (or worse, for some plaintiffs, to forgo bringing meritorious claims at all). There was extensive debate about both the causes and the magnitude of the problem. Participants were urged to study the issues further and, where possible, to implement pilot projects and case-specific protocols to test how cost and delay might be better controlled.
Two years later, there is much progress to report. More on the IAALS conference after the jump.
One conference panel focused on state court efforts to reign in excessive discovery through a combination of rule changes and increased judicial case management. The most extensive reforms occurred in Utah, which completed a comprehensive overhaul of its civil rules in 2011 (and to which I will dedicate a separate post in the coming days). Massachusetts and Colorado instituted pilot projects to limit discovery and provide more litigant access to judges in business disputes, and task forces are in place in Minnesota and Iowa. The early returns on the existing projects are encouraging: anecdotal evidence in Colorado and survey evidence in Massachusetts suggest that participants in the pilots were pleased with their cost-effectiveness; more importantly, there is a small but perceptible cultural shift among attorneys from the “demand everything, give up nothing” approach to a warmer embrace of proportional discovery.
Pilot projects are more difficult to implement at the federal level, as the federal rules require substantial uniformity across districts. But here, too, change is in the works. Last November, the Southern District of New York implemented a pilot project for complex cases with more than $300,000 at issue; rather than changing any rules, the court emphasized greater case management, including more focus on the initial pre-trial conference, streamlined processes for the resolution of discovery disputes, and pre-motion conferences which allow judges to give the parties informal feedback on the strength and weakness of their arguments before a motion is filed. The Seventh Circuit also instituted a pilot project (back in May 2009) that focuses specifically on electronic discovery. Surveys showed strong levels of attorney satisfaction with the pilot. It entered a third phase of development this past spring.
These pilots represent a classic bottom-up approach: courts across the country are examining a variety of different approaches to see what works, in the hope of learning from each other. More feedback on the pilot projects will help tailor future reforms and hopefully promote critical buy-in from attorneys, judges, and litigants when it is most needed.
My formal contribution to the IAALS conference was to encourage courts and researchers to share raw data on reform efforts more extensively. In scientific research, the ability to replicate results is the name of the game, but in legal research, all too frequently we approach the same problem using entirely different data and/or methods. (The glut of Twombly-Iqbal studies, which use a variety of different data sets to reach a variety of conclusions, illustrates the point.) I proposed creating a clearinghouse where the raw data could be posted for continued analysis by researchers. I also proposed removing existing barriers to court data, by (for example) creating national fee waivers for PACER research and posting all internal Administrative Office data on the U.S. Courts website. Time will tell whether the widespread sharing of data becomes commonplace, but it seems to me an indispensable tool for thoughtful reform.
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I wish to see perticipants of this conference in this attorney directory http://attorney-online.info/dir
Posted by: fan | Oct 4, 2012 1:12:30 PM