March 01, 2016

The Discovery Rules Have Changed But Will We?

Real change is at hand that should cut the cost of litigation.

Laurence F. Pulgram

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Too many of us have given up too soon on the idea that litigation can cost less.

Most litigators complain that the process should be less expensive, that there are not enough trials, and that the price of pretrial proceedings drives clients to settle or duck the courts in favor of alternative dispute resolution. We throw up our hands as the explosion of data exponentially outpaces our capacity to digest it. We see a system of civil rules, now almost 80 years into federal practice, that has ossified the pretrial process and seems largely unresponsive to efforts to streamline.

But all is not hopeless. Real change is not only possible, it is at hand.

The Federal Civil Rules amendments of December 1, 2015, provide the best opportunity in more than a decade to streamline, prioritize, and “proportionalize” discovery, thereby reducing cost and delay, permitting more trials, and injecting flexibility into a seemingly paralyzed system. The amendments change the scope and pace of discovery and envision a proactive role for judges in managing cases efficiently.

To be sure, these amendments are no panacea, and they will not be self-executing. They require thoughtful implementation by the bench and bar if they are to change anything at all. But if litigators and judges seize this moment to act on the amendments, we can make the most of their potential, move the needle toward lower cost and less delay, and, in so doing, achieve more justice. We, and the judicial system we serve and depend on, deserve nothing less.

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