The Need for Truly Systemic Analysis of Proposals for the Reform of Both Pretrial Practice and Evidentiary Rules: The Role of the Law of Unintended Consequences in "Litigation" Reform

By Imwinkelried, Edward J. | The Review of Litigation, Spring 2013 | Go to article overview

The Need for Truly Systemic Analysis of Proposals for the Reform of Both Pretrial Practice and Evidentiary Rules: The Role of the Law of Unintended Consequences in "Litigation" Reform


Imwinkelried, Edward J., The Review of Litigation


I. THE LACK OF SYSTEMIC PERSPECTIVE IN PRIOR DEBATES OVER "LITIGATION" REFORM 206

A. Consistent, Even Necessary, Relation............................... 206

B. Promoting the Policy of Preventing and Exposing Perjury............................... 207

C. Post Hoc Rationalizations............................... 211

II. THE LACK OF SYSTEMIC PERSPECTIVE AS A TRIGGER FOR THE LAW OF UNINTENDED CONSEQUENCES............................... 213

III. EXAMPLES OF THE OPERATION OF THE LAW OF UNINTENDED CONSEQUENCES IN THE ATTEMPTED REFORM OF "LITIGATION" PRACTICES............................... 218

A. The Unintended Consequences of the Reform of Pretrial Practices: The 1993 Amendment of Federal Rule of Civil Procedure............................... 26............................... 218

B. The Unintended Consequences of the Reform of Evidence Rules: Federal Rule of Evidence 612............................... 224

C. The Emerging Pattern............................... 229

IV. A COUNTER-EXAMPLE OF SYSTEMIC LITIGATION REFORM: THE CASE FOR THE ENACTMENT OF NEW FEDERAL RULE OF EVIDENCE 502 ON PRIVILEGE WAIVER............................... 230

V. CONCLUSION............................... 235

"In some one of its numerous forms, the problem of the unanticipated consequences of purposive action has been treated by virtually every substantial contributor to the long history of social thought."

-Robert K. Merton1

There is a paradox at the heart of the American litigation system. On the one hand, we have the most liberal pretrial discovery rules of any advanced country. In many American jurisdictions, a litigant can not only discover information relevant to the allegations in the pleadings; the litigant can even discover information relevant to allegations that the pleadings could be amended to include.2 The consequences of that liberality are startling:

Perhaps no case could be a more monumental example of the reality of modern ... e-discovery than the ongoing Viacom copyright infringement lawsuit against YouTube filed back in 2008. In that dispute, the judge ordered that 12 terabytes of data be turned over, according to Matthew Knouff. "People often say that one terabyte equals 50,000 trees, and 10 terabytes would be the equivalent of all the printed collections of the Library of Congress," says Knouff, who is general counsel of Complete Discovery Source, a New York City-based... discovery services provider. For the Viacom/YouTube case then, the demand was for the printed equivalent of the entire Library of Congress. And then some.3

It is no wonder that foreign corporations are so reluctant to set foot in an American courtroom.4 They routinely insist on arbitration and choice-of-forum clauses to avoid subjecting themselves to the burden and expense of such breathtakingly broad discovery rules.5

On the other hand, the United States has the most complex, restrictive set of evidentiary rules governing the admissibility of evidence at trial.6 The continental countries still largely adhere to the civil law tradition of "free proof."7 Although it is an overstatement to claim that "there is no such thing as European Continental Evidence law,"8 the continental systems have largely abandoned the canon9 and Roman10 law rules requiring the trier of fact to assign specified weight to particular types of evidence.11 In addition, as a general proposition civilian systems recognize fewer of the exclusionary evidentiary rules that characterize American law.12 For that matter, even countries that share the common-law tradition with the United States have substantially liberalized their admissibility standards. Thus, England, the birthplace of the hearsay rule, has significantly relaxed that exclusionary doctrine by conferring more discretion on judges to admit demonstrably reliable, valuable hearsay testimony.13 In contrast, in the United States, the doctrine remains a complicated edifice with a definition,14 two exemptions,15 and no fewer than thirty different exceptions. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Need for Truly Systemic Analysis of Proposals for the Reform of Both Pretrial Practice and Evidentiary Rules: The Role of the Law of Unintended Consequences in "Litigation" Reform
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.