The Federal courts are increasingly turning in the wrong direction, away from deciding cases on the actual merits, with a jury considering witnesses’ tones of voice, demeanor, sincerity, uncomfortable shifting, and all the telltales we use to decide if a person is lying. Instead, cases are overwhelmingly decided based on a judge’s imagination of what a reasonable jury would think if the jury could see all that evidence, and the judge bases this imagination on a cold record without this critical information. The 2013 proposed changes would limit the amount of information a party in court can get from another party, so there would be a huge advantage for large companies and government agencies that already have most of the information. While the proposed rules allow judges to decide whether to allow the parties in a case to escape those limits, that will be based on a further exercise in imagination about what the unknown information would say it it could be obtained, and what the judge really thinks about the “worth” of the case. Civil rights attorneys are rightly very worried about the result of such a system, and whether the public will continue to respect court decisions coming from such a strange way of resolving disputes.
Large companies and government agencies will also be harmed down the road; they have an enormous stake, like all the rest of us, in the social stability that is maintained by a court system that is widely accepted as fair. They should rethink their support for rules changes that will temporarily make it easier for them to defeat their opponents, but that will come back to bite them in their lawsuits against other large companies and in any loss of respect for the Federal courts.
I submitted my comments in an effort to slow the headlong dash of the Federal courts in the wrong direction. We will see what the Advisory Committee recommends. Continue reading