ABA Journal

The New Normal

Change afoot in American civil justice system

By Rebecca Love Kourlis

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Rebecca Kourlis

My husband is a cattle and sheep rancher, and during the 36 years of our marriage, I have learned a few things—for example, in the spring, livestock can overgraze on sweet new grass to the point of killing themselves. It is called foundering.

Due process in the American civil justice system is like sweet green grass: It is essential to our lifeblood, but too much can be deadly.

Beginning in 2008, the profession began to sound the alarm that the civil justice system was indeed in danger of foundering. The ABA Section of Litigation was part of that chorus. More than 3,000 members of the section participated in a survey (PDF), which found that:

• Litigation is too expensive (81 percent).

• Because of those costs, smaller cases are not litigated and access is denied (82 percent).

• Litigation costs are not proportional to the value in a small case (89 percent) nor even to the value in a large case (40 percent).

• The cost of litigation forces cases to settle that should not settle based on the merits (83 percent).

The Institute for the Advancement of the American Legal System, the American College of Trial Lawyers Task Force on Discovery and Civil Justice, and others took on the task of trying to diagnose the underlying problem and propose solutions. IAALS undertook more surveys, including a survey of state and federal trial judges and chief legal officers and general counsel, and also conducted multiple empirical studies of court procedures around the country to gain insights into what is working and what is not in various jurisdictions.

In the fall of 2009, IAALS and the ACTL task force published a report (PDF) with 29 proposed principles. The principles contain broad ideas to improve the system, including changes related to judicial management, pleading, discovery, and experts. IAALS and the task force intended that implementation of the principles would occasion profound change in the way cases are managed and litigated.

The remarkable news is that the system responded, and that momentum is building. The first responders were those who convened and attended the 2010 Conference on Civil Litigation at Duke University, which brought together rulemakers, legal scholars, practitioners, judicial officers, professional associations, and researchers. That effort has now led to a preliminary set of proposals for changes to the Federal Rules of Civil Procedure, which emphasize and implement proportionality in discovery and require early and active case management. Those proposals are now before the Judicial Conference of the United States. The next stop is the U.S. Supreme Court and, if approved, the amendments would be submitted to Congress prior to May 2015, and would become effective in December 2015 unless Congress acts.

There are also various pilot projects in particular federal districts or circuits. For example, the Seventh Circuit project addresses e-discovery problems, and incorporates the use of e-discovery liaisons. A group of federal employment law practitioners developed a set of protocols for cases alleging adverse employment action, which are being used in approximately 20 federal district courts. These protocols set out the various documents that must be exchanged between the parties early in the proceeding without need for discovery request.

On the state court front, reform has come in the form of pilot projects, formal rule changes, case flow management changes, and case-type-specific protocols. The themes seem to be: 1) streamlining discovery and increasing judicial management in more complex cases; and on the other side, 2) automating and simplifying the process for less complex cases. There are projects designed to serve business cases (such as the Colorado project), or projects designed to expedite the process irrespective of the nature of the case (such as the Texas small case process). Pilot projects have also been implemented in Massachusetts and New Hampshire, and statewide rules changes have been implemented in Minnesota, Utah, and Wyoming, and Iowa is in the wings. Preliminary studies on some of the projects have been published, and the results are largely positive. The greatest success is the somewhat self-evident finding that streamlining discovery works well when coupled with strong judicial management. But, additional conclusions are that the various reforms appear to be encouraging cooperation and demonstrating an earlier time to disposition.

The Conference of Chief Justices has recognized this civil justice reform momentum, and recently appointed a Civil Justice Improvement Committee charged with gathering information about the various projects, developing guidelines and best practices for civil litigation based upon evidence derived from state pilot projects and from other applicable research, and making recommendations as necessary for the purpose of improving the civil justice system in state courts.

All of these efforts seek to make the civil justice system more accessible, less costly, less time-consuming, and ultimately more responsive to the needs of the American public. They are an admirable example of the profession responding to the reality that citizens across the demographic spectrum no longer believe that courts can and will provide “just, speedy, and inexpensive” resolution for legal disputes. As John Broderick, former Chief Justice of the New Hampshire Supreme Court, has said: “The challenges we all confront to make justice accessible, affordable, and understandable are many, and none are easy.” But, we are past talking about whether there is a problem, and are now implementing and experimenting with solutions.

This is not your grandfather’s or even your mother’s litigation system, and our risk of foundering is receding.

Rebecca Love Kourlis, a former justice of the Colorado Supreme Court, is executive director of the Institute for the Advancement of the American Legal System.

Editor’s note: The New Normal is an ongoing discussion between Paul Lippe, the CEO of Legal OnRamp, Patrick Lamb, founding member of Valorem Law Group and their guests. New Normal contributors spend a lot of time thinking, writing and speaking about the changes occurring in the delivery of legal services. You’re invited to join their discussion.

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