We hear a lot these days about the vanishing jury trial. There many reasons why the overwhelming majority of civil cases are no longer decided by juries, the most prominent of which are cost and the time it takes for case resolution. The civil process through trial takes far too long, and litigation expenses and attorney’s fees are unacceptably excessive in case after case.
It would be easy to blame evolving technology and information culture and the rigors and cost of eDiscovery for the impending demise of the civil jury trial. After all, cost is an ever-present delimiting feature in eDiscovery. Budgeting and managing eDiscovery scope and cost is certainly a significant consideration for the lawyer and the client, especially in the small to medium case. But as someone who tried cases as a lawyer and then a judge over 35 years that spanned the pre-eDiscovery era until present day, I submit that blaming eDiscovery and current information culture for excessive cost of litigation and as a barrier to jury trials is wrong. Jury trials as a means of resolving civil disputes were declining long before eDiscovery and electronic evidence came on the scene, mainly because of shotgun pleadings and an increasing dependence on protracted and expensive discovery, much of it unnecessary. In fact, technology and today’s information culture are a great equalizer in bringing the truth to bear on a litigated matter, and smart use of technology can make discovery and getting to the truth more efficient rather than less. So let’s take a look at an example of the real culprit that is killing the golden goose.
In Paylor v. Hartford Fire Ins. Co., 2014 U.S. App. LEXIS 6402 (11th Cir. 2014), a former employee brought an action in the Middle District of Florida against her employer, alleging interference and retaliation in violation of Family and Medical Leave Act (FMLA). The case could have been economically resolved if the plaintiff began with a tailored pleading designed to address the only real issue in the case. Instead a “shotgun pleading” followed by a shotgun defensive response and years of unnecessary discovery yielded delay and expense for the parties and abused precious court time. Here is what Judge Tjoflat had to say about the poor lawyering:
[t]he attorneys in this case could have saved themselves, their clients, and the courts considerable time, expense, and heartache had they only paused to better identify the issues before diving into discovery. The dispute in this case was really very narrow: Paylor requested FMLA leave on one day, and a short time later her employer asked her to choose between a PIP and the Severance Agreement. The parties agreed at oral argument—but only at oral argument—that the entire dispute boils down to the temporal proximity between Paylor’s FMLA request and Hartford’s offering the Severance Agreement. That’s the whole case.
The mistake of the plaintiff’s shotgun approach was only compounded by the defense counsel’s efforts to thoughtlessly or recklessly defend and take discovery on issues that were not real issues in the case. Judge Tjoflat compared the behavior of the lawyers in the Paylor case a “goat rodeo”:
At that point it was too late: the discovery goat rodeo had begun. Because a Magistrate Judge has no authority to narrow the scope of discovery (because that would constitute a dispositive ruling, a power forbidden to Magistrate Judges, see 28 U.S.C. § 636(b)(1)(A)), the parties had a free hand to take depositions and collect affidavits, business records, and interrogatories—most of which bear no obvious connection to the crux of the dispute. By the time the case wheezed its way back to the District Judge, she unhappily discovered that the record had become “voluminous,” consisting of “hundreds of pages of deposition testimony, witness affidavits, correspondence, various business records, and discovery responses.”
Though it is not an eDiscovery case per se, the Paylor case illustrates a ubiquitous problem that makes civil litigation so unpalatable to parties as a means of resolving disputes. Lawyers are wasting time, effort and client money at unacceptable rates. Unless lawyers have the focus and discipline to fashion economical and measured approaches for pleading and discovery suitable and proportional to each case, the civil jury trial will indeed vanish in our lifetimes. Ultimately, lack of efficiency due to mismanagement of cases and cost burden will cause the system ultimately to adjust out of the current model… which means lawyers will be the big losers. Lawyers need to wake up.
Whether excessive litigation effort and expense is a result of churning billable hours or a result lack of a technical skill set and ability to use all the tools available to make litigation efficient as well as effective, or both, these factors are ethically and professionally unacceptable. Proportionality and cooperation must become a part of the fabric of handling a case from pleadings through discovery. Lawyers must fight only the battles that need to be fought and request only the discovery that is actually needed for successful resolution of the case. Federal Rule 1 and its state court equivalents demand no less.
The building blocks for success in a litigated matter are actually not much different today than when I started trying cases almost 40 years ago. Focused advocacy involving thoughtful planning on necessary steps to resolution and the most efficient way to scale them should dictate every step in a case. This requires forethought and skill. The lawyer’s skill set today includes sufficient understanding of technology and information culture for the trial lawyer to have technology help rather than hinder the process. What remains to be seen is whether lawyers and our legal system will learn what is needed and adapt in time to save the civil justice system as we know it today.