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Abstract

Most commentators agree that the vanishing plaintiff and the vanishing civil jury trial in federal courts are primarily the result of the skyrocketing costs of litigation, especially discovery. I agree, but stand virtually alone in my view that the root of the problems and any solutions lie in the distinction between “trial lawyers” and “litigators.” The rise of the “litigation industry” fueled by the Federal Rules of Civil Procedure, and driven by the leveraging of litigation law firms, has become the eight hundred pound gorilla in our “midst.” So-called “experts” on discovery and the Rules have been writing about, tinkering with, and nibbling at the edges of the Rules since their passage in 1938—and the system is now more broken than ever. It is no coincidence that the demographics of the Judicial Conference Advisory Committee on Civil Rules has been, and continues to be, dominated by judges, lawyers, and law professors with primarily “Big Law” litigation experience.

Reducing cost and delay and increasing the role of trial by jury requires bold action. After being anointed the Grand Poobah of the Federal Courts for a day—my primary cure—strong medicine indeed—is to switch the discovery paradigm for criminal and civil cases. By rule, federal criminal discovery depends almost exclusively on the mandatory disclosure requirements triggered by a simple request from the defendant. In practice, mandatory mutual disclosure takes place quickly with discovery motions being far rarer than in civil cases. There are no depositions, interrogatories, or requests for production of documents. On the other hand, in civil discovery, where usually money, rather than liberty, is at stake, discovery is virtually wide open, extensive, expensive, and all too often a deep sea fishing expedition and battleground filled with obstructionist behavior on both sides.

Recent proposed amendments to the civil discovery rules will likely have the unintended consequences of further increasing the cost of discovery while affording greater opportunities for litigators to launch obstructionist tactics, even in mine-run cases. Switching the discovery paradigms in civil and criminal cases to allow for more discovery in criminal cases and far more limited discovery in civil cases, with strong mandatory disclosure requirements, and severe remedies for violating them, will greatly further justice in both. So, too, would modifying the transsubstantive nature of federal civil procedure by adopting simple tracking, case protocols, and dispositive motion reform. Finally, promoting the emerging Trial By Agreement reform movement now is something that is critically important without waiting for cumbersome and historically unavailing federal civil rules reform.

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