Academic journal article
By Kourlis, Rebecca Love; Singer, Jordan M.; Saunders, Paul C.
Judicature , Vol. 93, No. 3
Last year, we reported on the results of a survey of the American College of Trial Lawyers (ACTL) , conducted by the Institute for die Advancement of the American Legal System (LAALS) and the ACTL Task Force on Discovery.' The survey collected die opinions of nearly 1500 experienced litigators, representing both plaintiffs and defendants, on a wide range of issues concerning the civil justice system and the pretrial process. The survey found that large - often overwhelming - majorities of those responding were concerned about the cost of litigation, discovery abuse on both sides of a case, and the costs of electronic discovery. Survey respondents also indicated that active judicial management helps to shape and narrow the issues in a case, but that notice pleading does not. Comments to a series of open-ended questions in the survey underscored the respondents' general frustration with inefficiencies in the system.
The survey results provided a starting point for a broader discussion about the need for reform of die civil justice process. In March 2009, IAALS and the Task Force released a final report that proposed a set of principles for future civil justice reform. We report here on the content of the final report and the ongoing work of IAALS and the ACTL to foster positive change to the civil justice system.
The Task Force
The survey and final report are part of a joint project of IAALS and die Task Force that began in mid-2007. The project began by exploring die role of discovery in contributing to cost, delay, and associated problems with die civil justice process. That mandate was later broadened to examine other parts of the civil justice system that relate to and have a potential impact on discovery. The final report reflects die considered judgment of IAALS and the Task Force participants about the need for a new direction for die American civil justice system, one that is more fully in line with die realities of twenty-first century technology, business practice, and die needs of individual litigants.
In developing the final report and the principles contained therein, IAALS and the Task Force took into account nearly five decades of studies on cost and delay in die civil justice system, as well as the survey results, academic and legal commentary on the Federal Rules of Civil Procedure, information on innovative departures by state court systems from the traditional rules structure, and the participants' extensive personal experience.
The principles - A summary
The final report sets out 29 different principles, focusing on all aspects of the civil litigation process. The full reasoning behind each principle is explained in die final report. Here we summarize the principles by categorizing them in five core areas, and explain their underlying rationale.
Allow flexibility in procedural rules to address the particularized needs of each case. The Federal Rules of Civil Procedure, and many state rules, were originally designed to apply to all civil cases. Over 70 years of experience with die rules, however, suggests that in fact many cases do not fit easily into a "one size fits all" mold. Accordingly, from time to time courts and legislatures have implemented new Riles for certain types of cases. The final report recognizes that some case types do indeed require different treatment. For example, die procedures necessary to assure die full and fair adjudication of an employment dispute clearly differ from tiiose necessary for a complex antitrust case. The principles support the establishment of specialized procedural rules where appropriate.
Re-energize pleading. The final report emphasizes that pleadings should set forth the factual and legal basis of the pleader's claims or defenses in order to define the issues of fact and law to be adjudicated. They should give die opposing party and tine court sufficient information to determine whether die claim or defense is sufficient in law to merit continued litigation. …