Proposed changes to federal rules of civil procedure are a bad idea…for many reasons
I wanted to make all readers aware of some proposed changes to the federal rules of civil procedure, and explain in a little more detail why I think the proposed rule changes are a bad idea. Although the time for comments has now officially expired, there may still be an opportunity to encourage the Committee on Rules of Practice and Procedure to reject these changes and I encourage readers to do whatever they can to resist these changes to the rules.
I am not sure what it is about human nature (or maybe lawyer nature) that makes people want to write more rules instead of enforcing the rules we already have, but the rule changes are a bad idea.
Background to the proposed amendments to the Federal Rules of Civil Procedure
In 2010 the Standing Committee on Rules and Procedure met and developed a number of proposed amendments to the federal rules. According to the Rule Committee, the proposed revisions are designed to expedite civil litigation, and can be grouped into three types:
One set looks to improve early and effective judicial case management. The second seeks to enhance the means of keeping discovery proportional to the action. The third hopes to advance cooperation.
In my humble opinion, the proposed changes will do nothing to accomplish these objectives. I also think that a number of the changes strike right at the heart of what the judicial process is all about, and some of them even strike a blow at the United States Constitution. I am aware that those are pretty serious allegations, but I don’t know how else to describe some of these ideas.
For example, one of the proposed changes to Fed. R. Civ. P. 26(b)(1) creates a “proportionality” requirement for civil discovery. This requirement would mandate that federal courts limit discovery to make sure it is:
proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’s resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. (emphasis added).
In my view, this strikes right at the guarantees made by Section 2 of Article III of the Constitution. That section provides that,
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made …
There is no amount in controversy for federal question jurisdiction, because the Constitution says that when Congress passes a law, it is by definition important enough to merit the attention of a federal court. And that is fundamental to our system of laws. Of all of the things I like best about the Eastern District of Virginia I have never observed any judge there berate a litigant or a lawyer for filing an “unimportant” case in federal court — but I have been asked by Judges in federal courts other than the Eastern District of Virginia why an FLSA case for $10,000 or so wasn’t filed “in a small claims court or somewhere less important than my court room.”
I restrained my answer at that time, but I had the overwhelming urge to say: “Write your Congressman if you don’t like my FLSA case Judge, because it was Congress that told me to file it here.”
But I digress…
Efforts to increase judicial involvement in the discovery process by the proposed rules
Another major goal of the rule changes is to get more judicial involvement in the discovery process. This one confuses me as well, because what is needed is not more judicial involvement in the discovery process, but rather judicial involvement in the discovery process at the right times and in the right places and in the right amounts.
I do not think the sort of judicial involvement contemplated by the rule changes would prove helpful. The proposed rule changes seek to require an “informal conference” with a Judge prior to filing a discovery motion. I fail to see how would be helpful but I do see how it would delay a real discovery motion. Scheduling such an informal conference would no doubt be difficult in most cases where there is a discovery dispute, because much of the time when a discovery dispute arises one or both parties are engaged in some sort of shenanigans. If the parties can’t cooperate in discovery they are probably not going to cooperate in setting an informal discovery conference. This so-called “informal conference” would therefore create a real delay as the parties move from squabbling about discovery to squabbling about scheduling the informal conference.
This requirement would also create significant additional work for the courts who already have quite enough to do as it is; it would also increase a client’s costs. Any judge would be unable to prepare for these “informal” conferences without some kind of written statement of the issues prior to the informal conference, meaning clients will waste further money for their lawyers to prepare such a written statement. In complex cases, these conferences would be even more meaningless because judges just would not have time to prepare.
Meanwhile, the underlying dispute would be no closer to being resolved. Ultimately, many litigants would still need to file a discovery motion, and clients would basically pay twice for the same work product.
The proposed changes to Fed. R. Civ. P. 4(m) are also a bad idea.
Of all of the suggestions in the proposed revisions, shortening the period for service of process (found in Fed. R. Civ. P. 4) from 120 days to 60 days is by far the worst one, and it make little sense, to be blunt. I do not see how on earth this would make the civil discovery process shorter or cheaper, because we are talking about a period of time before a defendant even knows it has been sued. Forcing a plaintiff’s attorney to serve a complaint 60 days after filing will only require lawyers to serve lawsuits before they are ready to fully focus on a case. It will also give defendants less time to discuss settlement prior to having to incur the costs of filing an answer and grounds of defense.
Some of the proposed changes are not necessarily bad per se, but experience in other jurisdictions has shown them to be unhelpful
Certain other proposals are not bad per se, but experience in Virginia state courts has demonstrated that they will not be helpful. for example, the proposal that a party be allowed to submit written discovery along with the complaint is not a bad idea on its face, but requiring an answer as of the initial conference renders it meaningless. In any event, Virginia state courts have always allowed written discovery to be served alongside the complaint, but the opportunity is rarely taken, because it is better to wait and see the answers and denials of the answer before wasting precious interrogatories and document requests.
If the Federal Rules Committee is serious about speeding up civil litigation, all they need to do is look at the U.S. District Court for the Eastern District of Virginia
Judges and lawyers practicing in the Eastern District of Virginia already know that the formula for moving cases along is very, very simple. Almost every single ill that the new rule revisions hope to correct could be corrected much more easily by (1) setting an early trial date early in the litigation and then sticking to it; (2) creating a short discovery period and (3) by efficient judicial policing of the discovery process.
Simply put, most cases should be brought to a jury trial within one year of the date of filing, regardless of whether or not the case is served within the 120 day period set forth by Fed. R. Civ. P. 4(m). That makes it virtually impossible for there to be anything other than a short discover period. And a short discovery period means that a lawyer on the plaintiff’s side has no choice but to carefully prepare his or her case from the very start, beginning with a focused, carefully prepared complaint. This is how we do it in Virginia, and it is somewhat unique, in my experience, from what one sees in other places. In New York and Florida, for example, I have seen long, rambling complaints that have several hundred words per numbered paragraph. Such allegations do not help to define the issues in a case, and they render the denials of an answer unhelpful.
When lawyers are faced with a short discovery period and an early trial date, you see, they are forced to make every part of civil litigation count. In too many places, the allegations of a complaint and the denials of an answer (both pursuant to Fed. R. Civ. P. 8) are not regarded as framing the scope of the litigation. Too many lawyers regard a complaint as something designed to scare a defendant; by the same token, too many lawyers view an answer as something to be prepared without communicating anything about the case.
The proposed rule changes should be rejected, and I encourage my readers to pass it along…I will keep you posted about the proposals as the wind their way through, or not….hopefully.
