Sweeping Changes to Federal Rules of Civil Procedure Intended to Change Courts' Culture
A wave of new amendments to the federal rules of civil procedure will take effect Tuesday, Dec. 1, sparking cultural and operational changes to the nation’s legal system. Approved last April by the U.S. Supreme Court, the amendments are intended to refocus the legal community on providing a just, speedy, and less expensive resolution in litigation for every case.
The momentum for change comes from collaboration between the American College of Trial Lawyers (ACTL) Task Force on Discovery and Civil Justice and the Institute for the Advancement of the American Legal System (IAALS) and its Rule One Initiative. IAALS is one of the nation’s leading legal think tanks and for the past decade has been harvesting data from empirical research and pilot projects across the country. The focus of these pending amendments is associated with changes to discovery and overall case management, and they stem in part from this collaborative work.
“The nation’s judicial system is huge and our problems are pervasive,” explained former Colorado Supreme Court Justice Rebecca Love Kourlis, who serves as Executive Director of IAALS. “We must have a system of civil justice that is accessible, fair, trustworthy, and respected, and the only way to achieve that is to change our culture and how our courts function.”
Discovery in litigation has become excessive in scope and cost, exceeding the intended search for the truth. Instead, the justice system has become bogged down to the point where many individuals with legitimate legal issues simply have no access to the courts.
“We proposed that proportionality be the most important principle applied to discovery,” Kourlis noted. Other recommendations by ACTL and IAALS include changes to judicial case management, disclosure, use of experts, and education for judges.
For instance, amendments associated with judicial case management are focused on requiring federal judges to be more hands-on with the cases they handle. The ACTL and IAALS recommendations go further than the federal amendments by emphasizing the need for one judge to handle the more complex cases from filing to final resolution. That judge should oversee pre-trial management, including focusing discovery and setting out firm deadlines.
From a culture perspective, the Federal Rules are intended to help lawyers and judges rethink their approach to litigation by taking into account the clients’ unique issues and needs, the need for cooperation between parties, and the objective of fairness for everyone.
Change is happening, Kourlis said, adding that rule reform, judicial case management, and culture change are necessary in tandem. “Rules set the expectations and can change the legal culture, but a good judge also plays a critical role in early case management and enforcement of those expectations.”
IAALS’ Rule One Initiative was started nearly a decade ago to advance empirically informed models to promote greater accessibility, efficiency, and accountability in the civil justice system. Through comprehensive analysis of existing practices and the collaborative development of recommended models, the Rule One Initiative empowers, encourages, and enables continuous improvement in the civil justice process.