On December 1, amendments to the Federal Rules of Civil Procedure will take effect which are intended to change the culture of litigation.
According to a post on the Institute for the Advancement of the American Legal System (IAALS) blog, the new rules affect “judicial case management, disclosure, use of experts, and education for judges.”
From a culture perspective, the Federal Rules are intended to help lawyers and judges rethink their approach to litigation by taking into account the clients’ unique issues and needs, the need for cooperation between parties, and the objective of fairness for everyone.
Change is happening, [IAALS Executive Director Rebecca Love] Kourlis said, adding that rule reform, judicial case management, and culture change are necessary in tandem. “Rules set the expectations and can change the legal culture, but a good judge also plays a critical role in early case management and enforcement of those expectations.”
In particular, Rule 26(b)(1) governing discovery will require “proportionality.” Discovery is permitted if, inter alia, it is
proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Click here for the full text of the rule changes. Click here and here for my posts on related IAALS reports.
I like the post, very well written.
Thank you for sharing. The process for civil justice can often seem overwhelming and too burdensome for some members of our society. Any rule changes that have the goal of making the law community more focused on just, speedy, and cheaper resolution of cases should be looked at as a good thing.
According to the IAALS blog, one of the ways to meet the above goals is to look at judicial case management. The new amendments focus on having federal judges be more hands-on with their cases. One example of the amendments focusing on speed is Rule 16: Pretrial Conferences; Scheduling; Management. The amendment under “time to issue” says that the judge must issue the scheduling order as soon as practicable. The amendment goes further to say that the judge must issue it within 90 days unless they have good cause for delay. I think this time limit is an objective step toward speedy resolution.
Further, amendment to Rule 26(b)(1) as discussed in the initial post focuses on allowing discovery that is proportional to the needs of the case. The amendment discusses some considerations that determine whether discovery is proportional to the needs to the case. I believe that some of those considerations are imperative to meet the proportionality desired. One of the considerations I think is very important is the importance of the issues at stake in the action. More discovery should be warranted when there is a high importance on the issue at hand. If the issue at hand in the action does not have a broad impact, less discovery may suffice to solve the specific issue.
One concern I have with the new amendments is how they will be enforced. Although the amendments do seem to work toward a more efficient civil justice system, the amendments will not have an impact if they are not enforced. Another factor to consider is whether the enforcement of the amendments will lead to new litigation, making the original litigation longer than it would normally be.
I look forward to seeing if change is recognizable with the new rules starting December 1st.
The comparison between this post and “Planning is Critically Important for Early Dispute Resolution” is interesting because it will not only help to improve litigation time and resources (in theory) but may also help promote ADR at an earlier stage. By lawyers taking the time to do a more in depth assessment of their case at an earlier stage it may become apparent that some form of ADR is the better solution.
Additionally, while this rule sets different limitations on the scope of discovery it also opens the door to litigate all of the added limitations. So, until the modified rule is more established there may be increased litigation or there may be an increase in ADR. Further, it puts the side opposing the discovery in a better position to argue the proportionality and that the evidence should not be discoverable, thus increasing litigation.
It will be interesting to see how lawyers adapt to this rule and how it will impact ADR.