|January 23, 2014|
Previously published on January 21, 2014
Judges and clients continue to lament the cost of litigation. Some attorneys do as well but there is certainly less worry from those that make their living from the expense of litigation. New changes to Federal Rule of Civil Procedure 45 (use of a subpoena) and other forthcoming tweaks to the discovery rules are supposed to help lessen the cost of litigation by moving cases along more quickly. In reality, tweaking deadlines is unlikely to solve the problem. However, the power to do so is already in the hand of attorneys and judges. The question is who is going to use the power to achieve the goal of Federal Rule of Civil Procedure 1.  This rule states, “[The rules] should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” It is interesting that the drafters chose the word “inexpensive.” The advisory committee notes to Rule 1 indicate that the 1993 amendments solidify the interpretation that certainly the district courts have the authority to “ensure civil litigation is resolved not only fairly, but also without undue cost or delay.” However, the notes for 1993 also go on to state that attorneys, as officers of the court, share this responsibility with the court.
There has been so much discussion in the last few years about the new economic realities for law firms and what clients now want or expect. Talk of delivering superior service and other fluff in order to convince attorneys that they really do not need to do much with the actual practice of law or rates. It all sounds good to in-house counsel but there is rarely much substance to these discussions. What could be more real than truly delivering litigation services to clients at the most efficient and cost-effective manner? Clients truly want it and the Federal Rules expect it. This article advocates doing so in a concrete manner.
For those that practice before the United States District Court for the Eastern District of Virginia, they know that cases move along in this court at a speedy clip. Most civil cases are set for trial within 90 to 180 days after the case is at issue, which could be when a response to the complaint is filed. It is unheard of in almost all instances that a case would not be tried within a year of being filed. If the federal judges of Virginia can do so then the example of how to litigate a case quickly is achievable. Can this process be translated to other districts? Absolutely.
The power certainly is within counsel’s control to have a case in any district ready for trial in a year. Implementing the scope of Federal Rule of Civil Procedure 1 is and should be what federal litigation is all about in this day and age. Attorneys owe it to their clients to handle cases justly, quickly and inexpensively. Failing to adhere to this philosophy is making litigation in all courts, but especially federal ones, too expensive and burdensome for all but the largest civil litigants who are usually paying by the hour. That reality is creating another law of unintended consequences - the vanishing civil trial. So how can attorneys take control of their cases?
While judges have a strong role here, which will be discussed later, it is always best that lawyers try their case the way they want as long as they truly adhere to the spirit of Federal Civil Rule 1.  The very best mechanism for attorneys to achieve a realistic (but fast) schedule and get the case ready is to use the tools already provided in Fed. R. Civ. P. 26(f). The current version of this rule is well known to most federal court practitioners. However, few attorneys appear to actually engage in this pre-discovery conference to honestly map out their cases in detail. It is beyond the scope of this article to ferret out why that occurs. Maybe the lawyers are scared to lock themselves in to a schedule or limit discovery. Lawyers know most courts do not enforce the rule closely. So many lawyers have little trial experience in the younger generations that they cannot see how their case will play out. It does not really matter why as long as practitioners recognize that in order to truly handle and achieve a just, speedy and inexpensive case, this is the best place to start.
Attorneys should engage in a truly meaningful Rule 26 conference. What changes need to be made in discovery or stipulations to it? Every case does not need two, three, four or more sets of requests for production. If an attorney has evaluated the case and gathered ample information before the conference then it should be clear that one request for production with a follow-up set should be enough in most cases. The same is true with interrogatories, which rarely yield much meaningful information anyway when not properly thought out before serving them. Of course, does a $200,000 case require ten depositions and exhaustive expert reports? Doubtful, but most attorneys seem scared to agree to a limit of two or three depositions. This should be even easier if a party can use a thorough Rule 30(b)(6) corporate deposition in a case to cover most topics of a business defendant, assuming the deponent(s) are properly prepared and tendered to testify. Of course, larger cases will obviously require more discovery. You only need to sit through one eight week trial where four hundred depositions were taken to know there is a better way to plan a case and execute on that plan. Litigation by monetary attrition benefits no one in the long run. In short, spending an hour or two with opposing counsel and honestly working through the Rule 26(f) conference can yield enormous dividends to everyone involved in the case. The hourly billable cost in legal fees of the attorneys, if they honestly engage in the process and are prepared to do so, can save thousands, tens of thousands or more in attorney’s fees when wasteful discovery is prevented. This does not even begin to touch upon the savings if e-discovery is properly handled at this early stage rather than data dumps that have to be resolved after the fact.
If the attorneys have gotten this far and follow this advice, then present your Rule 26(f) information to the court as an order or stipulation. This way everyone is bound by it and is far more likely to follow it. This should definitely be done if the court does not incorporate the plan into its scheduling order. Of course, include language that allows exceptions when needed for good cause.
Now, least anyone think all of this is a lot of hot air, there is strong support for this view of federal litigation beyond Rule 1. The support focuses on attorneys and judges playing a very active role in legitimately managing cases. Every attorney practicing in federal court should stop and immediately read the Benchbook for U.S. District Court Judges published by the Federal Judicial Center.  For those attorneys involved in civil litigation it can be shocking to read some of the very good ideas advocated in this publication. Of particular note is the reminder that discovery activities in a case are to be proportional to the needs of the case. In other words, discovery is not a free-for-all to be whittled down at the conclusion of the discovery period.
The Benchbook repeatedly calls for district judges to take control of the civil cases before them. However, many of these ideas can be utilized by counsel and worked into a Rule 26(f) report/stipulation/proposed order. However, one of the most interesting suggestions in the Benchbook addresses one of the biggest and most vexing problems in civil litigation - discovery motions. The Benchbook suggests that the parties be required to present discovery disputes informally by teleconference or short letter prior to the filing of a formal motion. The Federal Judicial Center has found that many discovery disputes can be resolved by the judge on the telephone. How much can clients save in litigation costs by avoiding the dreaded motion to compel or for a protective order? This is especially true when so many counsel capitulate on their discovery motion on the eve of the hearing.
This resource, and frankly others from the Federal Judicial Center, available for judges handling civil litigation provide really excellent ideas to streamline cases and the increasingly rambling manner in which they are handled by attorneys. It would be wonderful to see more district judges implement more of these ideas and encourage counsel, through pretrial scheduling orders, to also voluntarily implement as many of these ideas as possible. Regardless, attorneys can do so even without the urging or direction of the court in their Rule 26 (f) conferences. Doing so will benefit the parties and court greatly. Considering the Benchbook is now on its sixth edition it is fair to say that its ideas for handling civil litigation in accordance with Rule 1 have been successfully tested by enough district courts to know that these mechanisms work, and work well. Hopefully district judges not using these tools will consider doing so through testing them in cases to determine if they work for their courts and then utilizing those that work on a regular basis.
If counsel and judges worked more at implementing the strategies set forth in the Benchbook, it would yield tremendous rewards to judicial efficiency and lawyer inefficiency that costs clients handsomely. Properly structured and managed motions and discovery practice, as outlined in the Benchbook, is the lynchpin to bringing litigation costs down and speeding up the process. In the end everyone is a winner. Cases move faster and cost less. Judges are happy but clients will be even happier, and a happy client is one who will send more business to his counsel rather than grumble and complain about how expensive everything is when litigating.