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Cost of Discovery a Driving Force in Settling Cases, Study Shows
The National Law Journal
September 10, 2008
image: Artville Illustration
On one thing plaintiffs lawyers and defense counsel can agree: The cost of litigation, particularly discovery, has become the driving force in settling cases, not the merits, according to results of a survey of groups representing both sides.
The joint survey, released on Tuesday by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System, found that 83 percent of the nearly 1,500 lawyers responding found costs, not the merits of a case, the deciding factor in settling.
Some 68 percent of the college fellows agreed that civil cases do not get filed because of the prohibitive litigation costs. And nearly one-quarter, or 23 percent, said the civil justice system is "broken."
The majority found that the discovery system in particular is broken and "has become an end in itself," according to the report.
"Electronic discovery clearly needs a serious overhaul," the report concludes. The survey grew out of the ACTLA task force on discovery, which joined with IAALS to conduct the survey of 3,800 college fellows, producing a 42 percent response rate.
The lawyers surveyed urged judges to take more active control of litigation at the outset of a cases and, when abuses occur, to step in to enforce the rules. Some 86 percent say judges seldom impose discovery sanctions.
As for the welter of local rules around the country, the lawyers called them "traps for the unwary" and called for either abolishing them entirely or making them uniform.
Some two-thirds believe that "initial disclosures" do not reduce discovery, as they were intended, or save clients any money.
And when it comes to large law firms, 64 percent of the respondents said the economic models of large firms encourage more discovery than necessary.
The lawyers split on dispositive motions. Most did not believe they are used as a tactical device, but 58 percent thought judges take too long to decide the motions. The same number, 58 percent, thought that judges decline to grant summary judgment motions, even if warranted, while a minority of 13 percent thought they were granted too often. As for judicial understanding, some 76 percent of those surveyed think judges do not understand electronic discovery issues well.
On the positive side, 67 percent believe arbitration shortens the time it takes to resolve disputes.
Those responding had practiced civil law an average of 38 years, with 31 percent representing defendants, 24 percent representing plaintiffs and 44 percent represented both plaintiffs and defendants in their practices. They represented civil attorneys with a median hourly rate of $350, and a range of $120 to $1,000 per hour. More than half litigate in state court primarily, while 18 percent litigate primarily in federal court, and the rest have practices equally divided between the two.
