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ABA Section of Litigation to Recommend Changes to Federal Rules

By Jeffrey B. Tracy, Litigation News Associate Editor – December 8, 2009

The American Bar Association Section of Litigation, in conjunction with the Advisory Committee for Civil Rules, the committee of the Federal Judicial Conference charged with initiating changes to the Federal Rules of Civil Procedure, is taking a comprehensive look at the federal civil litigation system to determine what, if any, changes need to be made to the current federal system, including changes to the rules. The survey results have just been made available to the public.

In August, the Federal Judicial Center surveyed Section members asking questions related to their practice in and satisfaction with the federal system, including the federal rules. Of the 3,300 respondents, approximately 25 percent represented plaintiffs, 50 percent represented defendants, and the remaining 25 percent represented both plaintiffs and defendants equally.

Of the respondents, 37 percent believe that the federal rules do not work to secure the “just, speedy, and inexpensive determination of every action.” Approximately 66 percent agree that the current rules could be improved, including changes that could be made to the number, complexity, and consistency of the rules. Approximately 25 percent of respondents believe that the rules should be reviewed as a whole and rewritten to address the needs and problems in litigation today.

Although plaintiffs’ and defendants’ lawyers did not always agree, there was broad consensus that:

  • early judicial intervention and management by judges narrows the issues and helps to limit discovery abuses;
  • cooperation and collaboration between counsel reduces costs;
  • lawyers and judges could reduce unduly burdensome and costly discovery by availing themselves to current restrictions within the rules more often;
  • initial disclosures often do not help limit discovery or move the progression of the case and can add to the costs of discovery;
  • shortening the time to final disposition reduces costs; and
  • over 70 percent of respondents selected quality of judges as an advantage of federal court versus state court.

While there are areas of consensus, there are also areas of disagreement among respondents as to the effectiveness of the current rules, including:

  • lawyers were split in their opinion of enforcement of the rules as written, with 54 percent believing that the rules are enforced and 40 percent believing that they are not;
  • almost 75 percent of defense lawyers believe that fact pleading, which requires more specificity, can narrow the scope of discovery, while 65 percent of plaintiffs’ lawyers believe that it cannot;
  • plaintiffs’ lawyers agree that e-discovery has enhanced their ability to discover all relevant information, but defense lawyers believe that e-discovery increases the costs of litigation, has contributed disproportionately to the increased cost of discovery, and is overly burdensome.

The Section organized the Future of Civil Litigation Special Committee to review the results and develop the recommendations, which are to be presented at the 2010 Conference on Civil Litigation on May 10–11, 2010 at the Duke University School of Law.

“The expectation is that the conference will provide suggestions for possible changes in the federal rules as well as for best practices for lawyers and judges to accomplish the purpose of the rules to secure the just, speedy, and inexpensive determination of every action,” says the Honorable John G. Koeltl, U.S. district judge for the Southern District of New York, a member of the Advisory Committee, and chair of the planning committee for the 2010 conference.

Lorna Schofield, New York, chair of the Section of Litigation and member of the planning committee, was surprised about the level of dissatisfaction with the current rules, noting how moderate the dissatisfaction levels were compared with other surveys performed by other groups.

“Certainly, there is dissatisfaction by some in the bar with litigating civil cases in federal court,” says Schofield, citing that over 33 percent of the respondents believe that the rules are not conducive to meeting the goal of the “just speedy, and inexpensive determination of every action,” and 25 percent believe that the rules should be reviewed as a whole and rewritten. “But that also means that a majority of lawyers are satisfied, or perhaps they’re cautious or just set in their ways and don’t want to learn a whole new way of doing things,” says Schofield.

“For the first time since 1938, when the federal rules were last changed, there seems to be something in the zeitgeist that has created an appetite for wholesale reexamination of the federal rules—by lawyers, judges, and even the rule makers themselves,” says Schofield.

Keywords: Litigation, Federal Rules of Civil Procedure


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