What can be done to address this problem? First, data collection is absolutely necessary for diagnosing the sources of delay, which, like viruses, can emerge and mutate rapidly. Without data, the problem may seem chaotic or, worse, be attributed to inaccurate causes (e.g., too many cases or too much discovery). Perhaps one judge is backed up due to a complicated trial; perhaps another due to illness or staffing challenges. Likewise, the solutions may not be deducible from intuitive reasoning alone. Perhaps one court is efficient thanks to an excellent staff person, who can become an exemplar for training across the entire system. Simply put, relevant, detailed, and transparent data show us where to look for the problems and their solutions. While data are already gathered in our federal courts, leaders in all of our courts across the country must ensure the data are collected and accessible and can be used to actually solve problems.
At first glance, one might see a tension between Ms. Prescott’s call for faster adjudication and her discovery recommendations. More discovery can mean more time spent on a matter. Supplementing the formula that has dominated discourse on administrative reform since the 1980s would be a good place to start. The formula has been as follows: # of cases * (scope of discovery) = load on courts. See Arthur R. Miller, The Pretrial Rush to Judgment, 78 N.Y.U. L. Rev. 982, 996–1003 (2003) (discussing various late-20th-century reform efforts aimed at combating a perceived “litigation explosion”). The formula is intuitive and correct to some extent, but it is imprecise. The burden of discovery scales not only with the amount of information to be moved but also with the efforts to move it.
Our system cannot only be concerned with precluding unnecessary discovery; it is equally important to fast-track necessary and inevitable disclosures. Ms. Prescott’s focus on information asymmetries draws attention to that ideal. Data yet again can provide solutions. See Linda Sandstrom Simard, Seeking Proportional Discovery: The Beginning of the End of Procedural Uniformity in Civil Rules, 71 Vand. L. Rev. 1919, 1940 (2018) (“Historical data will illustrate when certain case characteristics . . . pose a risk for disproportional discovery and support the development of techniques to avoid or defuse a problem before it materializes.”). When subsequently using such data to inform changes, key stakeholders representing all sides must of course be at the table. Courts can promulgate and enforce more context-specific initial disclosure rules, as Michigan has done for auto accident and personal injury cases. See Mich. Ct. Rule 2.302(A)(2) & (3).
In Michigan, our Justice for All Commission, comprising a wide cross section of stakeholders, has a technology and data-sharing work group that is studying data gathering in our civil system. While the work is not easy, given vastly decentralized sources from which data must be collected, the commission recognizes that data should inform every recommendation for ensuring a better-functioning court system. As our nation recovers from a pandemic, our trial courts have an opportunity to innovate and manage backlogs in a manner that creates a higher-functioning system for everyone.