From Recommendations to Reform in the 21st Century

In our recent publication in the Kansas Law Review, "The American Civil Justice System: From Recommendations to Reform in the 21st Century," we explore the national momentum that has arisen around reducing the costs and delays associated with civil litigation:

Although these themes have resonated throughout the history of the civil litigation system, recent efforts have demonstrated a renewed and serious commitment by judges and attorneys around the country to developing updated procedures designed to serve these two interrelated goals. From initial efforts to identify and define the problems that plague the system, to efforts to develop and implement solutions, the past six years have seen a surge in attention to these issues. With pilot projects underway across the country implementing and testing solutions, we have moved from recommendations to reform. Although the pilot projects are diverse in their solutions, there are common themes across the state and federal projects. These themes provide insight into broad changes that are on the horizon for the American civil justice system.

In this article we explore the history of recent efforts, beginning first with the efforts of IAALS and the American College of Trial Lawyers Task Force on Discovery and Civil Justice, which culminated in a Final Report that proposed twenty-nine Principles containing broad ideas to improve the civil justice system. We note the important empirical research over the last five years that has laid the groundwork for understanding what is working, and what is not, in the civil justice system. We also recognize the efforts at the federal level in support of rules changes and the pilot projects at both the state and federal level to experiment with proposed solutions. While it is too soon to draw conclusions from the pilot projects, given that final data has yet to be collected and analyzed, we nevertheless recognize common themes from the various projects' design and purpose. These themes include (1) the importance of case differentiation, or experimentation with different sets of rules for different sorts of cases, (2) the express incorporation of proportionality principles into discovery, and (3) procedures that increase judicial case management. As we look at the action on the ground around the country, both at the state and federal level, it is clear we have moved past talking about whether there is a problem—we are now experimenting with solutions. Looking forward, we shall "stand on the shoulders of the successes and failures of projects now underway in order to reach for our ultimate objective: a just, speedy, and inexpensive determination of every action."