04 January 2016

Chief Justice Roberts Claims Of Out Of Control Federal Civil Litigation Not Borne Out By Facts

The Year-End Report [of Chief Justice Roberts on the Federal Judiciary] also regurgitates the defense mantra that “in many cases civil litigation has become too expensive, time-consuming, and contentious, inhibiting effective access to the courts.” In repeating this mantra, the Chief Justice overlooks the studies of his own research arm, the Federal Judicial Center, which found that discovery worked well and at moderate cost in most federal cases. 
In addition, government statistics show that the median lifespan of a federal civil case has not increased in forty years
Year ---- Median months from filing to disposition 
1974 ---- 9 
1984 ---- 7 
1994 ---- 8 
2004 ---- 8.5 
2014 ---- 8.3 
Of course, this is a national median, meaning that civil cases take more time in half of the district courts and even less time in the other half. And individual cases vary widely from the median. But the stable length of the median civil case is remarkable. 
Finally, far from a runaway court system, the Appendix to the Year-End Report states that court filings have decreased in every level of court in the federal system – 
Supreme Court (4.65% decrease), 
appellate courts (4% decrease), 
district courts (a 6% decrease in civil filings and a 1% decrease in criminal filings), and 
bankruptcy courts (11% decrease). 
In particular, federal civil case filings – the filings most pertinent to the Chief Justice’s ode to the new FRCP amendments – have remained about the same for the past 20 years. There were 269,132 federal civil filings in 1996, and 279,036 filings in 2015, a 4% increase. In the same twenty-year time period, the US population increased about 21% and real disposable personal income per capita increased about 34%.
From the Civil Procedure and Federal Courts blog.

Honestly, the latest revisions of the Federal Rules of Civil Procedure, which I recently reviewed to determine their applicability to the federal cases in my own practice. were modest and incremental. It may have been pro-defendant, but only marginally so.  More aggressive reforms sought by the defense bar were dropped in the rule making process, and even many of those reforms, some of which actually do apply in state court but not in federal court in Colorado, don't make all that much of a difference.

But, the claims of some new crisis are not borne out by the facts.

The biggest change in the last 40 years in federal civil cases has been a dramatic decline in actual trial, especially jury trials, as intensive efforts to settle cases prior to trial and the resolution of cases prior to trial in motion practice has displaced many jury trials.  Ample pre-trial discovery has been absolutely essential to facilitating the shift away from jury trials.

This doesn't mean that there are serious and deep flaws with the way the federal rules of civil procedure and similar rules in the state courts work in practice.

The rules of civil procedure are a disproportionately inefficient way of trying medium sized case, particularly those in the range of $15,000-$75,000 (in Colorado) where inexpensive limited jurisdiction trial court procedures aren't available.  In diversity cases, these medium sized cases are strictly a state court problem.  But, medium sized cases are still too expensive to litigation under the federal rules of civil procedure where they are allowed in federal question and federal party cases in federal court.  For example, many federal employment law cases are medium sized disputes.

The other big flaw of the Federal Rules of Civil Procedure are in the rare, very high stakes cases that are not uncommon in federal court (roughly speaking multi-million dollar cases), where the cost of the pre-trial discovery and motion practice stage of the case often explodes to an amount that is disproportionate to the amount necessary to get a fair resolution of the case.

The discovery rules themselves aren't the big problem in these cases.  Instead, it is the finality of the final determination at trial, which puts avoiding any possible surprise not matter how remote its likelihood at a premium, and the inability of the process to narrow the scope of the case to what is genuinely in dispute at an early stage of the process, in part because the court can't resolve any factual disputes even if their resolution if fairly clear, and in part because the court has only a limited ability and inclination to interpret the relevant law in advance of hearing the facts.

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