March 01, 2015

Pilot Project Reduces Delay and Cost in Federal Litigation

How limited-scope projects can offer a low-risk way to reform federal civil procedure.

Laura McNabb

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Rule 1 of the Federal Rules of Civil Procedure calls for the “just, speedy, and inexpensive determination of every action.” Pilot projects are essential tools for effectuating the call of Rule 1. By supplying detailed and creative gap-filling solutions that complement the Federal Rules, pilot projects can help reduce delay and costs in federal litigation.

To illustrate the important role pilot projects can play in the broader conversation about reforming civil litigation, this article examines one such project: the Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action (the protocols). This project is designed to streamline pretrial discovery in certain employment cases through automatic and expanded initial disclosures. As the protocols’ preliminary success both within and beyond the federal courts demonstrates, practitioner-driven, limited-scope pilot projects represent one highly effective avenue for augmenting existing procedures.

However pursued, innovation in the federal courts takes place against the backdrop of the Federal Rules. Expansive in length and breadth, the rules embrace a big-picture approach to federal pleading and practice, leaving individual districts to fill in any remaining gaps. This division of labor ensures that the rules are not encumbered by excessive detail that would complicate compliance and undermine national uniformity. Over the years, the rules have been amended several times. But because changing them affects the practice of law in every federal court across the country, proposed amendments are subject to a cumbersome review process composed of seven distinct stages and overseen by the Judicial Conference’s Committee on Rules of Practice and Procedure. This adventure can take two to three years.

By contrast, innovation through pilot projects is significantly less constrained. Because pilot projects do not bind courts everywhere, they can be tailored to specific problems, allowing a level of substantive detail not feasible in the rules. Moreover, unlike the time-consuming and often contentious process of amending the Federal Rules, innovation through pilot projects can occur quickly and typically depends on consensus from both the plaintiff and defense bars. With few procedural formalities to burden the development process, pilot projects can easily respond to a changing legal landscape, offering timely and creative solutions. And because judges will not extensively adopt projects that unfairly advantage one side or the other, pilot projects that depend on voluntary participation ensure low-risk and evenhanded solutions.

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