Lawyers are paid and trained to skate as close to rules as possible. Clients want lawyers to bless their actions as not violating any laws. In litigation, there seems to be a prevailing belief that whoever narrowly—or barely—complies with rules has an advantage. Maybe the rules shouldn’t allow that gamesmanship.
Amendments to the Federal Rules of Civil Procedure became effective in December 2015. Chief Justice Roberts focused on those amendments as the cornerstone of his 2015 Year-End Report on the Federal Judiciary, calling them transformational and a concrete step towards “a change in our legal culture that places a premium on the public’s interest in speedy, fair, and efficient justice.” I like them because they promote civility and professionalism.
Times Change—So Should the Way We Resolve Disputes
For history buffs (and Hamilton fans), the Report opens and closes with an in depth discussion of how prevalent dueling once was as a method of dispute resolution. And how many lives were lost or nearly lost as a result.
In 1838, John Lyde Wilson, a former governor of South Carolina, authored a rule-book for dueling that established time limits, the form and methods of communications, the requirement to attempt reconciliation without bloodshed, and if all else fails, how to pace off the field of battle. Wilson said he wasn’t advocating duels to resolve disputes, but that dueling was inevitable “where there is no tribunal to do justice to an oppressed and deeply wronged individual.”
Justice Roberts explains that Wilson’s rule-book is a reminder that the government has an obligation to provide tribunals for the peaceful resolution of disputes. The implication is rather than allowing wasteful procedural activities akin to dueling, the amended rules encourage a superior dispute resolution mechanism for the public.
New Rules Demand Cooperation and Proportionality
The amendments to the Rules address what the Commission on Professionalism has termed in our statewide surveys of professionalism “strategic incivility.” As is clear from our surveys, many lawyers are of the opinion that they must “zealously advocate” which means leave no stone unturned in litigation, especially if the clients want that approach. This type of procedural gamesmanship that consumes lawyer activity and client dollars is discouraged by the civil rule amendments.
For example, Rule 1 mandates that the Federal Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” The committee note states that “Effective advocacy is consistent with—indeed dependent upon—cooperative and proportional use of procedure.” Cooperation and proportionality are a consistent theme animating the amendments.
Justice Roberts explains in his Report that the amendment to Rule 1 expresses the obligation of judges and lawyers “to work cooperatively in controlling the expense and time demands of litigation…that lawyers–though representing adverse parties–have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolution of disputes.”
Amendments to Rule 34 require greater specificity in responses and objections. The amendments are designed, according to according to the committee comment, to decrease the potential to impose unreasonable burdens. In other words, no massive discovery requests in a simple case.
Similarly, amendments to Rules 16 and 26 emphasize the importance of proportionality and the parties’ relative access to information in setting reasonable limits on discovery. The explosion of electronic information is recognized, and the parties are now required to agree on the preservation and discovery of ESI in their case management plan and discovery conferences.
Judges Aren’t Only Supposed to Call Balls and Strikes After All
Increased and early judicial involvement is reflected in amendments to Rule 16 shortening the deadline for issuance of a scheduling order (making the Rule 26(f) deadline for the parties to “meet and confer” also accelerated) and eliminating the language concerning the holding of a scheduling conference “by telephone, mail, or other means.” The amendment is designed to encourage in-person interactions and enhanced communication between the judge and lawyers. In his Report, Chief Justice Roberts asks judges to take a more active role in managing their cases from the outset “rather than allowing parties alone to dictate the scope of discovery and the pace of litigation.”
Increased judicial involvement is also a solution echoed in the Commission’s own statewide surveys. Two out of the top six solutions to incivility put forth by respondents to the 2014 survey call on judges to exercise greater leadership and control.
It is clear that judges and lawyers need to work together to change our legal culture. Justice Roberts stated in the Report that the goal of a just speedy and inexpensive determination of every action and proceeding will be achieved only if the entire legal community, including the bench, bar and legal academy, step up to the challenge of making real change, to make sure our legal culture reflects the values we all ultimately share.
I agree with Justice Roberts’ observations that most lawyers “will readily agree–in the abstract–that they have an obligation to their clients, and the justice system, to avoid antagonistic tactics, wasteful procedural maneuvers, and teetering brinksmanship. I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics. The test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results.”
Duels went by the wayside because of a change in culture. So should the use of procedural rules to win strategic victories that unnecessarily deprive our clients of funds and clog the administration of justice. Roberts again: “We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result.” Agreed.