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July 2010

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This article is in the news archives --- for current news go to the Third Branch News.

 

Examining the State of Civil Litigation


An Interview with the Chair of the Judicial Conference Advisory Committee on Civil Rules Judge Mark B. Kravitz (D. Conn.) has chaired the Judicial Conference Advisory Committee on Civil Rules since 2007. He was appointed to the U.S. District Court for the District of Connecticut in 2003.

Carolyn Lamm, ABA President

Judge Mark B. Kravitz (D. Conn)

The U.S. Supreme Court approved in April amendments to Rules 26 and 56 that will take effect on December 1, 2010, unless Congress takes action. What changes are being made to Rule 26?

The proposed amendments to Rule 26 address two issues that recur with frequency affecting disclosure and discovery of trial-witness experts. The current rule requires trial-witness experts to provide extensive pretrial reports about their opinions and how they were reached. Though the rule does not require nonretained testifying experts such as treating physicians to submit a report, courts have imposed this requirement on them. In many cases, it is difficult for counsel to obtain a report from these experts because of the time and expense. Under the proposed amendments, the reporting burden is substantially alleviated for these experts. The amended rule requires the lawyer—not the expert—to provide a statement identifying the subject matter summarizing the facts and opinions of the expert’s expected testimony.

The proposed amendments to Rule 26 also extend work-product protection to the discovery of draft reports by testifying expert witnesses and, with three important exceptions, to the discovery of communications between testifying expert witnesses and retaining counsel. Many courts construed the 1993 amendments to Rule 26 to authorize discovery of all communications between counsel and expert witnesses and all draft reports. Routine discovery of communications between counsel and expert witnesses and the expert’s draft reports has caused serious problems. Lawyers and experts take costly steps to avoid creating any discoverable record and, at the same time, take elaborate steps to attempt to discover the other side’s drafts and communications. The wasteful discovery-avoidance practices include lawyers hiring two sets of experts—one for consultation, to do the work and develop the opinions, and one to provide the testimony—to avoid creating a discoverable record of the collaborative interaction between the retaining lawyer and the experts.

The amendments protect draft expert reports and communications with counsel but do not impede effective discovery or examination at trial. The expert must produce, and the parties remain free to explore, what the expert considered, adopted, rejected, or failed to consider in forming the opinions to be expressed at trial. Most importantly, the expert is subject to cross-examination on the strengths and weaknesses of his opinion and the basis for them—the most effective means of finding the truth. These changes will reduce cost, focus discovery and trial on the merits of the experts’ opinions, and allow parties and their counsel to make better use of their experts. The proposed amendments were supported by both plaintiff and defense groups, including the American Bar Association (ABA), the American Association of Justice, and the U.S. Department of Justice.

What changes are being made to Rule 56?

The proposed amendments rewrite and reorganize Rule 56, but the changes are strictly procedural. The Committee had two overarching goals: first, we did not want to change the substantive standard for summary judgment set by the Supreme Court 1986 trilogy; and second, we did not want the revised rule to favor either plaintiffs or defendants. The amendments achieve these goals. We also hoped to bring the text of Rule 56 into line with the way summary judgment is currently pursued in practice, and to create national uniformity regarding summary judgment procedure. We achieved the former and in large measure achieved the latter, although there continue to be local variations in summary judgment practice among district courts.

The amendments include: (1) requiring that a party asserting a fact that cannot be genuinely disputed or can be disputed provide a “pinpoint citation” to the record supporting its fact position; (2) recognizing that a party may submit an unsworn written declaration under penalty of perjury as a substitute for an affidavit to support or oppose a summary judgment motion; (3) setting out the court’s options when a party fails to assert a fact properly or a party fails to respond to an asserted fact, including affording the party an opportunity to amend the motion, considering the fact undisputed for purposes of the motion (“deemed admitted”), or granting summary judgment; (4) setting a time deadline, subject to variation by local rule or court order in a case, only for the filing of a summary judgment motion; (5) explicitly recognizing that “partial summary judgment” may be entered; and (6) clarifying the procedure for challenging the admissibility of summary judgment evidence.

The Committee decided to return to the term “shall grant” in Rule 56(a) in describing the court’s task in ruling on a motion when no genuine dispute exists. The word “shall” is indeterminate and ambiguous. The difficulty was in choosing a replacement, since the two likely replacements—“should” or “must”—mean very different things. The Committee considered several alternative approaches to avoid the use of “shall” (or “should” or “must”) but concluded that any of the alternatives would work still greater changes in the summary judgment standard. In the end, the Committee came back to the vow not to alter the substantive standard, and concluded that “shall grant” was a sacred phrase that could not be changed without changing the substantive meaning. In view of case law adopting conflicting interpretations of the ever-ambiguous “shall,” the Committee decided to return in this one instance to the historical “shall” and allow the case law to continue to develop.

Your Committee recently held a major conference on civil litigation at Duke University. What was the impetus for the 2010 Civil Litigation Conference? Why now?

For years, we have heard a steady chorus of complaints from parts of the bar about the increasing costs and delays in federal litigation. I was struck by the dearth of available empirical data. I began exploring with others ways to grapple with this issue. A study by the Institute for the Advancement of the American Legal System (IAALS) and the American College of Trial Lawyers was completed at this time that indicated great unhappiness with the cost and pace of litigation. The results of that study underscored the need to gather empirical information on the operation of the federal courts. The Federal Judicial Center conducted detailed assessments of federal court cases and also administered surveys for the Litigation Section of the ABA and the National Employment Lawyers Association. In connection with the conference, other groups—including IAALS and the Searle Institute—also conducted further empirical studies. The data we received was rich and detailed, and it will be a basis for further assessment of the federal civil justice system for years to come.

Who attended the conference? There were a number of panels during the conference—what topics/issues were covered?

Nearly 200 experienced lawyers, judges, and academics attended the conference. Many aspects of the federal civil justice system were covered during the conference, from pleadings to discovery, including electronic discovery, to trials, to case management, to settlements. The panels were comprised of plaintiff’s lawyers, defense counsel, corporate counsel, bar association officials, federal judges, and academics. We also had presentations from state court judges in terms of what they were doing to confront the challenges of civil litigation, and bar groups, who had lots of meaningful recommendations. I want to commend Judge John Koeltl of the U.S. District Court for the Southern District of New York, who chaired the Planning Committee of the conference, for coming up with the panels and putting on a wonderful and successful conference.

What is the current state of civil litigation in federal courts?

Many attendees and panelists expressed dissatisfaction with the cost of discovery and with judicial case management, particularly in the pretrial phase, and especially in complex and high-stakes litigation. These individuals want lower costs and more sustained judicial management, and believe that, without change, more citizens will be driven from federal courts to state courts and alternative dispute resolution options. Lawyers and litigants on both sides of the “v” expressed a desire for more judicial involvement in supervising discovery and tailoring it to particular cases. There was less agreement on issues such as pleading.

That said, most of the attendees and panelists expressed the view that the system generally worked well, at least in the “average” cases litigated in federal court, and that, while certain rule changes were in order, there was no need for broad, fundamental, and structural change in the Rules. Of course, that fits nicely with the Rules Enabling Act process. Many of the topics repeatedly discussed at the conference are things that the Committee has been focusing on for some time: for example, the cost of discovery, pleading standards, and judicial management.

What was the general reaction to the conference from participants and from the bench and bar nationally? Will the issues discussed at the conference impact the general public too?

Interestingly, the most consistent theme during the conference was the need for more active involvement by judges in the pretrial period of a case, including in the formation of a discovery plan, and the need for cooperation among counsel when it comes to discovery. The empirical data showed that, when counsel cooperate in formulating and executing a discovery plan, they can keep costs down for their clients. The cnference provided us with valuable information on whether it is harder to litigate in federal court because of the cost or delay or changes in pleading standards or other reasons. These issues are of vital importance to everyone, ranging from members of the public worried about access to courts to government agencies and private entities worried about enforcing public rights, to American businesses worried about competing in an increasingly international market.

How may the Judicial Conference address the issues raised about civil litigation in the future?

We need to fully analyze the data first. The 2010 conference produced a lot to review, including many white papers that suggest many different approaches, which require careful study. We are not excluding any possible solution, including seeking Judicial Conference-endorsed litigation protocols, rules changes, or legislation, and developing targeted judicial education and training. We are working closely with the Federal Judicial Center and its Director, Judge Barbara Rothstein, to identify areas that seem to need the greatest attention.

Will there be any follow-up on the conference’s discussions/findings by your Committee?

Absolutely. We intend to make full use of all of the hard work that the participants and attendees put into the conference. We will make a report to Chief Justice John Roberts and Administrative Office Director Jim Duff about our plans for pursuing the ideas generated at the conference. I suspect that the Committee and the Federal Judicial Center will be working off the conference ideas for quite some time to come. And indeed quite some time will be required to work through all of the ideas generated by the conference. It is both a great challenge and a great opportunity.