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Saturday, January 02, 2016

Chief Justice Roberts on speedier civil litigation . . . and dueling?

Chief Justice Roberts' 2015 Year-End Report on the Federal Judiciary focused on the amendments to the discovery and case-management portions of the Federal Rules of Civil Procedure and the need for the rules, courts, and attorneys to speed-up civil litigation. Roberts calls the amendments "a major stride toward a better federal court system," but insists they work "only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change." Adam Liptak covers the report; he includes interviews with several Civ Pro profs questioning the wisdom or necessity of the rules, so at least 1/3 of that triumvirate is not on board.

It is difficult not to read Roberts' facially neutral comments about delays in litigation--he calls out both those who make burdensome discovery requests as well as those who evade legitimate requests through dilatory tactics--as not reflecting the anti-plaintiff slant of much of this Court's procedure jurisprudence. "Speedier litigation" is generally code for getting defendants out of litigation more quickly. Plaintiffs do not win cases quickly, only defendants do; it takes time and effort for plaintiffs to gather the information they need and to carry their burden of persuasion (which only can be done at trial, in any event). But the incentive structure built into these amendments is almost certainly to limit what will be made available to requesting parties far more than to halt dilatory actions by producing parties. This almost certainly works against plaintiffs who depend on discovery to uncover information that in many cases is uniquely and exclusively in defendants' possession or control and unobtainable other than through discovery (e.g., employment discrimination, constitutional cases, and other cases that turn on defendant intent). And by emphasizing the need for speed and efficiency, Roberts' Report appears to be pushing district judges towards that understanding.

Roberts praises those district judges who are "knowledgeable, actively engaged, and accessible early in the process" as best able to resolve cases fairly and efficiently. But this stands in interesting tension with Twiqbal, which ratched the pleading standards precisely because the Court did not trust district judges to effectively manage cases in a way that would protect government defendants against burdensome litigation. But now we have formal rules, and official encouragement from the Chief Justice, promoting just such management. Does this mean that we trust district judges across the board and can return to pre-Iqbal pleading? Of course not, seeing as how the amendments also eliminated FRCP 84 and the Forms precisely because the Forms were inconsistent with Twiqbal. Instead, this smacks of Roberts not-so-subtly hinting which direction judges should be exercising this (not actually new) managerial discretion for those cases that manage to survive pleading and get into discovery.

Roberts begins and ends the Report with a discussion of dueling, its horrors, and its demise--just the sort of distracting and irrelevant rhetorical flourish that I often criticize in his opinion writing. And it feels just as glaring and out of place here. His point seems to be that dueling became obsolete when government began providing functional alternative dispute-resolution mechanisms. Thus, federal litigation must be speedier and more efficient so that it does not make a return to dueling look good by comparison or become the equivalent of a fictional 15-year feud between two Napoleonic-Era French cavalry officers. As he puts it, "We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result." His attempted connection seems especially strained in that dueling, at least as practiced in England and the U.S., was not primarily a method of dispute resolution; it was about restoring honor for perceived personal slights more than determining who was in the "right" in a legal dispute. Dueling thus was different than earlier practices of trial by combat, which rested on the belief that whoever prevailed in combat must have been in the right. It also means that the availability of functional courts would not have mattered all that much, since the personal conflicts settled by duel could not necessarily be transferred into a judicial proceeding.

Update: Michael Dorf argues that the Report can be seen as Roberts' attempt to shape the rules beyond his other three opportunities--appointing the rules committees, voting on the Rules themselves, and interpreting them in later litigation.

Posted by Howard Wasserman on January 2, 2016 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


It's fascinating to me that Justice Roberts fears a return to dueling (even if such a fear is of course just a rhetorical device) as the people's revolt against a court system that does not represent their needs, causing them to seek extra-judicial remedies for their disputes. His report comes at a time when Roberts has been one of the driving forces behind upholding binding consumer arbitration clauses that ensure the everyday disputes of Americans will never see the inside of a courtroom.

Posted by: Zach | Jan 27, 2016 12:41:19 AM

Federal litigation is slow because discovery disputes are cash-cows for huge corporate firms. There is nothing more profitable for a BigLaw firm than to take a simple discovery request and turn it into thousands of hours of "document review," "privilege review," "serving of objections," "responding to motion," and "arguing motion."

Plaintiff's lawyers already have a disincentive towards creating work for themselves; they're not the problem. The problem comes from huge firms creating work for themselves, defendants telling their lawyers to "pull no punches," and courts entertaining this charade.

Posted by: Max Kennerly | Jan 13, 2016 6:31:14 PM

Also, just how much experience does Roberts have in trial-court litigation, either as a lawyer or a judge? (I'm talking about nuts and bolts discovery practice-- not fancy memoranda in support of MSJs arguing fine legal points. And I'm guessing the answer is none.). He may have special abilities in parsing statutes and precedents -- that's where he made his career as a lawyer and how he's spent his time in judicial robes. But there's no reason at all to think he has special insight into the problem of day-to-day discovery practice. We'd be better off hearing from a magistrate judge.

Posted by: Also | Jan 4, 2016 11:13:08 AM

On the plus side though, dueling was extremely cheap for both plaintiffs and defendants. Maybe it's the wave of the future.

Posted by: Bruce Boyden | Jan 2, 2016 2:42:46 PM

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