Ruminations on Arbitral and Judicial Case Management
McArthur, John Burritt, Judicature
Do arbitrators know something that judges don't?
Arbitration has grown rapidly in recent years. The fact that the American Albitration Association was arbitrating 137,000 cases a vear by 2006, and the National Arbitration Forum, which was shut down last year, handled 214.000 cases in the same year, is one measure of the defections from Lhe court system.1 The success of JAMS as an arbitration provider similarly embodies the migration, of a respeciable number ol cases away from civil court and toward arbitration.
The major arbitration providers are blunt about their view of why a considerable number of parties are paying to opt out of state and federal courts: slow and expensive judicial case management. Providers like the American Arbitration Association (AAA), JAMS, and the International Institute for Gonfiici Prevention and Resolution (CPR) market their services as a solution to crowded, slow, costly court proceedings. JAMS, for instance, claims that its arbitrators will ensure that an "arbitration will be resolved much less expensively and in much less time than if it had been litigated in court; . . . .""2
The same emphasis on arbitrators' ability to resolve cases sooner and less expensively appears in the repeated claim of these virtues in the AAA's amicus brief in Hull Street Associates, L.L.C. v. MntteL* Indeed, in HaU Street the Supreme Court itself endorsed arbitration's ability to produce quick, final decisions as its critical virtue, calling arbitration's "essential virtue" its potential to "resolve disputes straightaway."' Speed and economy are the hallmarks of" this alternative dispute-resolution system.
Some panies choose arbitration because they want to forego a jury, ensure confidentiality for their proceeding, or hire judges with certain technical backgrounds. But the most touted benefit of arbitration is, as it has been from the early days of arbitration in the United States, this ability to reduce cosi and delay.
Arbitration has grown more important in part because the scope and expense of discovery in court cases continues to increase in this age of copiers and computerized document replication. A recent case management study by the American College of Trial Lawyers (ACTL) and the Denver-based Institute for the Advancement of the American Legal S)'stem (LWLS) found that the dominant view in a survey of ACTL members was that the civil justice system "is noi broken, [but] it is in serious need of repair. In many jurisdictions, today's system takes too long and costs too much."'
The pressure on state and federal courts is not likely to slow. For instance, in 2007 the average of the median intakes for the 12 states with unified court systems was 1,832 cases per judge; in general jurisdiction states, 1,682 cases." The total number of new state court filings in 2007 (including for courts of limited jurisdiction and small claims courts) was 103.7 million cases.7 Small wonder thai trials have vanished from the experience of the average American lawyer and that the cases that do get to trial do so later and at more cost.
The Federal Rules and many of their state counterparts have been amended a number of times since the 1970s to address the judicial system's twin problems of delay and cost. The presumptive federal limit on interrogatories to 25 questions and depositions to 10, with individual depositions lasting no more than seven hours each, cut out some waste, as did the healthy, necessary ban on speaking objections. The voluntan' disclosure tucked into Rule 26 was designed to expedite discovery, and Rule 26's authorization to condition e-discovery on considerations of cost, burden, and relative benefit should narrow document production in many cases. The increasingly broad and detailed scope of prctrial conferences has increased the level of case maiiagemenl. And, finally, narrowing discovery to just evidence "relevant io any party's dann or défense" lias given courts clearer power to rein in the more ambitions, free-form lawyers. …