News & Updates

The Judicial Conference Standing Committee on Rules of Practice and Procedure this week approved a package of amendments to the Federal Rules of Civil Procedure for publication and public comment. The proposed amendments to Rules 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37 form a “package” of proposed rule changes that represent the culmination of several years of work on the part of the Civil Rules Advisory Committee.

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. In this article we explore the history of recent efforts, and 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.

In a recent article by Judge Kevin Burke, a member of the IAALS Board of Advisors, and Babak Armajani, they discuss several key areas in which courts are failing to meet the needs of the public, and a few states that are taking steps in the right direction. In states where careful consideration of problems and measurement of remedies is taking place, positive and dramatic changes can begin to take hold in the culture and operations of our courts.

This September, IAALS and the National Judicial College will host an educational summit exclusively tailored for state court judges on all facets of the discovery of electronically stored information (ESI)—from preservation to production to eventual use at trial. The Summit will feature nationally renowned speakers and will provide both a core of basic training for judges on e-discovery and in-depth and interactive discussions on the more complex issues facing judges in state courts across the nation.

The Minnesota Supreme Court continues to implement rule changes stemming from the recommendations of its Civil Justice Reform Task Force. On May 7, 2013, the Court adopted an Order authorizing the creation of a Pilot Expedited Civil Litigation Track "to promote efficiency in the processing of certain civil cases," reduce costs, and provide a quick and reduced-cost process for obtaining a jury trial when civil actions cannot be resolved by judicial decision or by settlement.

On March 7, 2013, Chief Justice Jean Hoefer Toal entered an Administrative Order recognizing the successful ad hoc use of a Fast Track jury trial process in South Carolina and implementing the voluntary process statewide. The Court also adopted Rules and Procedures for the Fast Track jury trial process, which apply in the absence of agreement of counsel otherwise.

The Hon. Jack Zouhary, federal district court judge and member of the American College of Trial Lawyers Task Force on Discovery and Civil Justice, recently penned an article for the Federal Lawyer about his case management process and the prioritization of time and resources throughout the life of a case. In broad strokes, he outlines ten of the most important considerations he makes to keep his courtroom efficient.

IAALS has played an important role in empowering jurisdictions to experiment with pilot projects and rules changes. Today, we are making information about these programs more accessible to all by launching Action on the Ground, an interactive map that gives users rich information about programs around the country—at a glance.

In November, the Texas Supreme Court issued long-awaited rules for expedited actions, proposing a mandatory expedited process for cases of $100,000 or less. The Texas Supreme Court has since issued revised final rules, which became effective March 1, 2013. Despite considerable public commentary on the mandatory nature of the rules, the Expedited Actions process under Texas Rule of Civil Procedure 169 remains mandatory for cases of $100,000 or less.

In an article in the March edition of The Colorado Lawyer titled "'No Written Discovery Motions' Technique Reduces Delays, Costs, and Judges’ Workloads," Colorado attorney Richard P. Holme touts the “no written discovery motions” technique, whereby the court addresses all discovery disputes with an in-person or telephonic discovery hearing instead of a written motion, at least at the outset. This technique presents a number of advantages for the judge and the parties.

The Iowa Supreme Court is moving forward with implementation of a Business Specialty Court Pilot Project and will begin receiving cases on May 1, 2013. The Business Specialty Court Pilot Project grows out of the recommendations of Iowa’s Supreme Court Task Force for Civil Justice Reform. Among the recommendations was the establishment of a business court pilot project, one judge/one case and date certain for trial, adoption of the Federal Rules’ initial disclosure regime, and a two-tiered differentiated case management pilot project.

IAALS’ new publication, A Roadmap for Review: Guide for Appraisal and Improvement of Caseflow Management in Civil Cases in U.S. District Courts, provides the tools for any interested federal judge to make a quick, initial assessment of the status of his or her civil case docket to measure how it compares to his or her colleagues as well as to courts across the nation. If further analysis and appraisal are deemed appropriate or desirable, this Guide provides the user with the tools to do so and recommendations for better practices.

The District of Nevada adopted a Short Trial Program on March 11, 2013. The Short Trial Rules include the express purpose of expediting "civil trials (both bench trials and jury trials) through procedures designed to control the length of the trial, including, without limitation, restrictions on discovery, the use of smaller juries, and time limits for presentation of evidence."

Chief Justice Wallace Jefferson of the Texas Supreme Court issued his State of the Judiciary message on March 6. In his remarks, Chief Justice Jefferson, who is also member of the Quality Judges Initiative O’Connor Advisory Committee, called for greater access to justice for litigants and families across the socioeconomic spectrum and more efficient courts that can process cases in a reasonable amount of time.

The United States District Court for the District of Colorado announced proposed amendments to its Local Rules on March 7, 2013, which may foretell of pilot programs or other special projects in the District of Colorado's future. The proposed amendments are few, but include sections on "Pilot Programs or Special Projects," which may be "authorized by the court following reasonable public notice and opportunity for public comment."

In a recent blog post, Lance Soskin argued that "litigation is a multi-billion dollar industry that favors the wealthy," leaves everyone else significantly disadvantaged, and that the answer lies in the better use of alternative dispute resolution. I take a different approach. While mediation and arbitration certainly have their place, we cannot and should not abandon the system itself. What we need is a justice system that is more accessible, efficient, and accountable.

In its Winter 2013 edition, The Arkansas Lawyer makes the case for a more efficient option for trial by jury in civil cases, and does so by introducing and reprinting an excerpt from A Return to Trials: Implementing Effective Short, Summary, and Expedited Civil Action Programs. The article highlights the diminishing civil jury trial and its impacts on Arkansas and the rest of country, and calls for action to protect this fundamental right.

The National Center for State Courts has developed a new model for estimating civil litigation costs, known as the Civil Litigation Cost Model. The model is based on the amount of time lawyers expend on various litigation tasks and their billing rates, which together provide a snapshot of “typical” costs, by task, for a number of case categories. By reflecting how costs are incurred throughout the litigation process, and the variability of costs from case to case, the model provides insight into the effect of such costs on a litigant’s access to the civil justice system.

Despite the fact that Federal Rule of Civil Procedure 26(g) went into effect in 1983, the first judicial opinion enforcing this provision was issued just last month. In Branhaven LLC v. Beeftek, Inc., both Plaintiff corporation and Plaintiff’s attorneys under Rule 26(g), ordering them to pay the fees and costs incurred by defense counsel as a result of Plaintiff’s “large, disorganized and last minute document production.”

The Minnesota Supreme Court has adopted amendments to its Rules of Civil Procedure and General Rules of Practice that are aimed at “facilitating more cost effective and efficient civil case processing.” The amendments, which take effect July 1, 2013, adopt many of the recommendations of the Civil Justice Reform Task Force.