University of Denver

Ten Years of IAALS: Spearheading Progress and Promise for a Better System

Chief Justice (Ret.), New Hampshire Supreme Court

IAALS is celebrating its 10th Anniversary in 2016. Throughout the year, we will be featuring guest posts from our colleagues and partners to recap our accomplishments and national impactand look to the future ahead. The full series of posts will be collected here.

I spent half my legal career as a civil trial lawyer in New Hampshire trying all manner of cases in state and federal court and sometimes trying or preparing to try cases in other states and jurisdictions. I learned from some great lawyers and mentors over those years. They viewed a jury trial not as a failure of the system but as an integral part of American justice. They tried many of their cases with four or five depositions, twenty key exhibits, an expert or two, and a theory of the case. Justice was almost always served. The lawyers I admired understood the probing value of focused, incisive cross examination, the transformative power of a witness's solemn oath, the value of the courtroom's sterile unfamiliarity in a search for the truth, and the capacity and integrity of juries to render fair verdicts. They viewed trial lawyering as a craft with a noble purpose and never viewed discovery as an end it itself.

The second half of my professional life I spent as a member of the New Hampshire Supreme Court and as a law school dean. Things changed in our trial courts in that span and often not for the better. Looking back, when I began my career as a newly minted lawyer civil jury trials were plentiful, timeliness was more generously defined, sanctions happened rarely, self-represented litigants were uncommon, collegiality was expected, trials were affordable, disputes in our communities were frequently resolved in public courtrooms, and discovery was relatively modest.

In the last twenty years, civil cases have become more and more expensive to prepare, discovery too often proceeds in search of the illusory smoking gun, requests for sanctions increasingly populate the landscape, memoranda and motions continue to increase exponentially, litigators have replaced trial lawyers, civility continues to erode, and trial by attrition has regrettably replaced trial by jury. The siren call of mediation and arbitration for business disputes is resonating and many other civil disputes have tread the path to private resolution. Gradually civil jury trials have begun to disappear. That is understandable because they are increasingly unaffordable. Make no mistake. Without systemic change they won't be coming back any time soon, if ever, and the art of trial lawyering will go the way of the blacksmith. We have lost our way.

Enter IAALS and the Rule One Initiative, with their distinguished partner The American College of Trial Lawyers. Hope arrived beginning in 2009, when an experienced group of judges and lawyers from around the country, under the tireless and inspired leadership of former Colorado Supreme Court Justice Rebecca Kourlis who founded IAALS and Paul Saunders of Cravath, Swaine and Moore LLP, began a seven year odyssey to examine and evaluate, in depth, the rules and principles underlying litigation in our state and federal courts. They were aided by years of research and empirical data on discovery and process reform inspired by IAALS in partnership with several states. Utah, Colorado, and my own state of New Hampshire played prominent roles.

It became apparent to the Task Force they formed, of which I was a part, that the rules undergirding civil litigation in the United States too readily accommodated, if not encouraged, protracted delay, excessive and costly discovery, and unwittingly made "proportionality" the first victim. We concluded that a "one size fits all" model was crippling the timely, fair, and efficient administration of civil justice in America, and that rules and process had to be refashioned to fit the case. The Task Force vetted its work at public hearings and collaborated with others for meaningful review and input, and issued its final report last April.

We are proud that our work helped in some important ways to both influence and complement the exhaustive work done by others culminating in the significant amendments to the Federal Rules of Civil Procedure that went into effect in December 2015. The new amendments are the best hope for a vibrant future for civil litigation across this country and will, I hope, reverse the disturbing trend of disappearing jury trials.

None of this would be possible without IAALS. Their leadership, insight, research, and vision are beyond compare. In ten short years, they have already begun to reshape our system of justice for the better, with an eye on more reforms that will further increase access to justice and ensure everyone is served by our courts. As a member of the IAALS Board of Advisors, it is my great pleasure to help steward their mission as we enter the next decade of IAALS.