One Year In: Judges Examine the Impact of Changes to the Rules of Civil Procedure

It has been just over a year since substantial changes were made to the Federal Rules of Civil Procedure, aimed at reducing the high costs and long delays faced by civil court litigants. And, this effort has not been limited to the federal courts. Many state-level changes have also been implemented across the country and Colorado has emerged as a leader by incorporating the federal amendments and making permanent many aspects of its Civil Access Pilot Project.

In the time since the new rules’ implementation, both state and federal judges have had a chance to reflect on their overall impact to date. In a recent Colorado Lawyer article, “A Year after Significant Civil Justice Reforms in Colorado: Successes and Challenges,” Magistrate Judge Nina Wang of the U.S. District Court for the District of Colorado and Judge Morris Hoffman of the Denver District Court discuss the positive impacts from their perspective, as well as the challenges that remain.

According to Magistrate Judge Wang, the federal rule changes are significant because they reinforce the “obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation.” In particular, she says that the amendments “refocus the court, and the parties, on a practice of active engagement for pretrial discovery.” However, she also notes that efforts to promote judicial efficiency such as active engagement in pretrial discovery, management of the proportionality of discovery, and the setting of reasonable expectations for electronic discovery are not new, and she suggests that it will take time for judges and lawyers to refine their varying approaches to discovery in the face of the new rules.

In looking at the amendments at the state level, Judge Hoffman noted that the “elephant in the living room of civil litigation is that even ‘proportionate’ litigation costs in the average case are so high as to be out of reach for all but the wealthiest of individuals and corporations.” Judge Hoffman notes that judges have a responsibility to enforce the rules, and attorneys must work to keep discovery costs down. While severely limiting discovery would have an impact, he recognized there are many challenges, including billable hour incentives and the lack of relationships among attorneys that reinforce trust and norms.

But despite the challenges presented by the economics of the civil litigation system, Judge Hoffman believes there are areas where improvement can be made. Lawyers need to learn to develop relationships with one another, and to trust one another. In his mind, there needs to be more common ground, or a set of norms that civil attorneys can draw from to guide their behavior.

“Let me suggest that in the civil practice we are in desperate need of fewer rules and more norms.”

Mark Staines is a second-year law student at the University of Denver Sturm College of Law and contributes to IAALS Online. Please direct inquiries about this post to iaals@du.edu.