The Institute for the Advancement of the American Legal System (IAALS) at the University of Denver and the American College of Trial Lawyers (ACTL) Task Force on Discovery have recently released a joint report calling for major change, not mere amendment, to the Federal Rules of Civil Procedure. The Report is the product of the diligent effort of two groups with the credibility to influence change, reason enough for any potential party to litigation (i.e. everyone) to consider their proposals.
The Final Report’s Proposed Principles were developed in the wake of a national survey of the 3,812 Fellows of the ACTL, of which 1,494 responded. This was an experienced bunch. On average, the respondents had practiced law for 38 years – a fact that surely cuts both ways in evaluating the relevancy of the data. Clearly this field can speak to the long view of civil jurisprudence but how comfortable are they with information technology? One seemingly uncontroversial finding of the survey is the overwhelmingly conclusion that the cost of litigation is impeding the fair resolution of cases and some deserving cases are not being brought because they fail a rational cost-benefit test. The need to control discovery costs, in-turn, was the animating principal of most of the recommendations in the Final Report.
As summarized by the groups’ press release, the twenty nine principles set forth in the Final Report involve the following subjects:
- The current system of pleading fails to provide an efficient mechanism for establishing claims or setting limits on the scope of discovery or trial; notice pleading should be replaced by fact-based pleading;
- Discovery costs far too much and has become and end in itself; discovery should be limited by proportionality, taking into account the nature and scope of the case, relevance, importance to the court’s adjudication, expense and burdens;
- The number of experts and the process for deposing them often significantly drives up costs; except in extraordinary cases, only one expert witness per party should be permitted for any given issue;
- Rotating judges managing a single case can undermine clarity and consistency; a single judicial officer should remain with a case throughout its life cycle.