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Wednesday, April 15, 2015

An End to “One Size Fits All” Procedure?

The following is from former (and future) GuestPrawf Jordy Singer (New England)

That’s the upshot of a new report issued today by the American College of Trial Lawyers Task Force on Discovery and Civil Justice, and the Institute for the Advancement of the American Legal System.  The ACTL and IAALS collectively call for a new civil procedure regime characterized by fact-based pleading (for both plaintiffs and defendants), sharp discovery limits, case-specific rules and protocols, and extensive judicial management. 

Some details on the proposals, and a few thoughts on what it all means, after the jump.

The report is actually the latest in a series by the ACTL and IAALS, dating back several years.  In 2009, the two organizations issued a Final Report in which they articulated 29 principles for reforming the civil justice system.  (I served as the Director of Research at IAALS until mid-2010, and assisted in the preparation of the 2009 report in that capacity.)  Since that time, eight state courts and four federal courts have implemented new rules or have initiated pilot projects that incorporate one or more of the principles.  (I previously blogged about some of the pilot projects here.) The new report summarizes the findings of those pilot projects, and, in light of those findings, revisits the original ACTL/IAALS principles.  In this latest iteration, some principles have been changed, others discarded, and others reinforced. 

The primary theme of the new report is that pretrial procedures should be tailored to the needs of each case.  The authors call for case-specific rules and protocols, a pleadings regime that identifies contested issues at the outset of the litigation, and a discovery regime that focuses the parties exclusively on those contested issues.  Among other things, parties would be required to plead all known material facts needed to establish their claims and defenses.  Shortly after the commencement of litigation, parties would be required to produce all known and reasonably available non-privileged, non-work-product documents and things that support or contradict specifically pleaded factual allegations.  Subsequent discovery would be limited to information that would enable a party to prove or disprove a claim or defense, or impeach a witness.  Perhaps most importantly, judges would be empowered and encouraged to keep the pretrial process narrowly focused on the issues identified at the outset of the case.

I am generally sympathetic to the tenor of the proposed reforms, and certainly to the notion that a more focused pretrial process can lower discovery costs, lead to better settlements, and make trial a cost-effective and viable method of resolving disputed claims. Nevertheless, practical challenges remain.  For one, it is unclear whether the courts themselves are ready for the expanded judicial role that the authors envision.  The principles invest judges with the power and discretion to shape the pretrial process from an early stage, by holding regular case management conferences, limiting or even staying discovery, or requiring the parties to participate in alternative dispute resolution.  For this level of judicial involvement to work, the authors recognize that courts must have adequate resources, and judges must have adequate expertise and trial experience.  While many judges are up to the task, there are also a host of structural impediments within the court system: the calendar system in many state courts that rotates judges through a session every six months, the fact that most state trial judges face short terms of office and periodic election turnover, the relative inexperience of new judges who are appointed after a career on the criminal side of the docket, and the fact that information relevant to proportionality decisions may not always be available to presiding judges.

There are other practical challenges, of course; we are not yet in a 1938-style moment of fundamental and comprehensive change. But the authors have already shown their willingness to play the long game of implementation, and refine their principles in light of growing empirical evidence.   In the meantime, the new ACTL/IAALS report thoughtfully, ambitiously, and unapologetically its readers to think differently about the civil justice system.  It should engender significant discussion in the coming weeks, and is worth a close read for anyone interested in civil justice reform.

Posted by Howard Wasserman on April 15, 2015 at 08:31 AM in Civil Procedure | Permalink


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