Expert Opinion

On the occasion of IAALS’ 10th anniversary, I’ve been reflecting on the strength of our partnership over the years, and on the value of that partnership as our shared work for fair, high quality courts takes on ever-greater significance. Justice at Stake is a nonpartisan, nonprofit organization working to keep America's courts fair and impartial. We work for reforms to keep politics and special interests out of the courtroom—so judges can protect our Constitution, our rights, and the rule of law. As you can see, our mission aligns pretty perfectly with that of IAALS and its Quality Judges Initiative.

Over the last decade, it has been a great pleasure to work with IAALS on efforts to improve our legal process and to change our legal culture. Chief Justice John Roberts devoted his recent  “2015 Year-End Report on the Federal Judiciary” to a discussion of the groundbreaking amendments to the Federal Rules of Civil Procedure. The Chief Justice began with a description of the practice of dueling in the early 1800s and the public disgust with this means of dispute resolution that led to a wider use of the courts for resolving disputes. And, he alluded to a similar distaste for modern litigation practices characterized by “antagonistic tactics, wasteful procedural maneuvers, and teetering brinksmanship” for “wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.” Clearly, there is growing recognition that we are ripe for a change in legal culture.

In April, there will be a vacancy on the U.S. District Court for Colorado due to the impending retirement of Judge Robert Blackburn. As with all Article III judgeships, the President will nominate someone to fill the seat, and that person must then be confirmed by a majority of the Senate—no small task in the final year of President Obama’s second term and with divided government.

An important takeaway from the May 2010 Conference on Civil Litigation held at Duke University Law School, sponsored by the Advisory Committee on Civil Rules, was that the disposition of civil actions in our federal courts could be improved by advancing early judicial case management. As a result, the package of amendments that grew out of the Duke Conference, and that went into effect on December 1 of this year, seek to promote sustained, active, hands-on judicial case management.

On December 1, Rule 1 of the Federal Rules of Civil Procedure was amended to recognize that the rules should be construed, administered, “and employed by the court and the parties” to secure a just, speedy, and inexpensive determination in every case. This change is part of the long awaited amendments to the Federal Rules of Civil Procedure, and this blog is one in a series this month on the significant changes.

Just a week ago, the long awaited amendments to the Federal Rules of Civil Procedure went into effect. Of the amendments, the most significant—and controversial—changes are to Rule 26, which specifically incorporates proportionality into the scope of discovery.

Today, December 1, the long awaited amendments to the Federal Rules of Civil Procedure go into effect. The “package” of amendments include rule changes across a number of rules (specifically Rules 1, 4, 16, 26, 30, 31, 33, and 34) and focus on increasing cooperation, achieving proportionality in discovery, and encouraging early case management by judges.

Our collective view of litigation is a bit like the old New Yorker map, which shows New York City magnified, and then skips most of the rest of the country, landing on the west coast. Thomas Clarke, Vice President of Research & Technology for the National Center for State Courts (NCSC), recently made that comparison, and he is right.

November 2015 is the 75th anniversary of the Missouri Plan, an innovative approach to selecting state judges intended to preserve their impartiality while holding them publicly accountable for their performance on the bench. First adopted by Missouri voters in 1940, this process is now used to select at least some judges in two-thirds of the states.

Lawyers, judges, and litigants alike have all come to the conclusion that the system is too expensive, complex, and time-consuming. If we are serious about having civil justice that is indeed just, speedy, and cost-effective, we have to make changes. Big changes.