In 2013, the Advisory Committee on the Rules of Civil Procedure, a body appointed by the Chief Justice of the United States, proposed a number of changes to the rules that govern cases in Federal trial courts. The changes are intended to speed up the pace of litigation and make it less expensive. Some proposals are very well taken, but others are a major problem because they:
- will encourage gamesmanship,
- increase the expense of litigation, and
- greatly reduce the opportunity for people and small businesses to get a just result when they are fighting well-funded large companies and government agencies.
While the changes are well-intentioned, I believe that they take Federal courts down the wrong path, away from the classic model of deciding cases with juries, based on the substance of the evidence and demeanor of witnesses.
The changes will take the courts further down the road of decisions based on judicial imaginings of how a “reasonable jury” would react to a cold written record, without any chance to hear the tone in which something is said, the confident or halting and shifty way in which something is said, or anything else that people rely on to judge whether a person is lying or telling the truth.
If the proposals are adopted, now the judges will also have to imagine what that cold written record would look like if the parties were allowed to get all the critical information from each other, with a strong presumption for greatly limiting the information.
I believe this is not deciding cases on the merits, but on their imagined merits. It is the wrong course for any court system, especially the extremely important Federal courts.
I believe that this will erode confidence in the ability of the Federal courts to render impartial judgments, and that the perceived legitimacy of the Federal courts is too important to risk in the name of an efficiency that is actually the opposite of efficiency.
There has been a months-long period of public comment, and three public hearings on these changes. The comment period expired on February 18, 2014. I have attached my comments here:
July 19, 2015 Update: Based on the recommendations of its discovery subcommittee, the Advisory Committee on the Federal Rules made significant changes in the draft, and helped ameliorate many — but not all — of the problems discussed in my comments, and those of more than two thousand others. The changes are very welcome, and show a heartening openness of the subcommittee to a change of course.
The process of evaluating and changing the civil rules is an ongoing one, and every attorney practicing in the Federal courts should keep an eye on the process and offer comments, whether critical because the subcommittee seems to be on the wrong course, or encouraging because it seems to be on the right course.