Chief Justice Urges Culture Change to Speed Civil Litigation

Chief Justice Urges Culture Change to Speed Civil Litigation Photo: Rick Kopstein/ALM John Roberts, Jr.

Chief Justice John Roberts Jr. on Thursday urged federal judges and lawyers to redouble their efforts to make civil litigation more just and efficient, admonishing them to change the legal culture and narrow the scope of discovery.

Roberts’ annual report on the federal judiciary focused entirely on the “just, speedy and efficient resolution of civil disputes,” as he highlighted new revisions in the Federal Rules of Civil Procedure that are aimed at achieving those goals. They took effect on Dec. 1.

“They mark significant change, for both lawyers and judges, in the future conduct of civil trials,” Roberts wrote.

The chief justice’s past year-end past reports have often focused on subjects with a higher profile, such as judicial ethics, budget issues and increased online access to court documents. By focusing on civil rules changes, a subject mainly of interest to lawyers and judges, Roberts may have sought to keep the federal judiciary out of the national headlines on the eve of a presidential election year.

The new rules, years in the making, added language that expressly states the obligation of judges and parties to make civil litigation move more quickly and efficiently. Another provision requires discovery requests to be relevant and “proportional” to the needs of the case, weighing whether “the burden or expense of the proposed discovery outweighs its likely benefit.”

“The amendments may not look like a big deal at first glance, but they are,” Roberts wrote, adding that making the new rules work will require “a genuine commitment, by judges and lawyers alike, to ensure that our legal culture reflects the values we ultimately share.”

Judges need to take an early and active stewardship role in managing cases, Roberts said, rather than deferring to the parties about the scope of discovery and the pace of the litigation. “A well-timed scowl from a trial judge can go a long way in moving things along crisply,” Roberts wrote.

As for lawyers, Roberts said, “they have an obligation to their clients, and to the justice system, to avoid antagonistic tactics, wasteful procedural maneuvers, and teetering brinksmanship.” He added, “I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.”

Roberts also said that “lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolution of disputes.”

The chief justice said the project to change the rules began with a 2010 symposium where research found that “while the federal courts are fundamentally sound, in many cases civil litigation has become too expensive, time-consuming, and contentious, inhibiting effective access to the courts.”

Rebecca Kourlis, executive director of the Institute for the Advancement of the American Legal System, said Thursday that Roberts’ highlighting of the rules changes in his annual report could have “broad and deep” impact on civil reform efforts. “No real change will occur unless accompanied by a culture change.”

“Clearly, if there were one person I could identify who can lead the system toward change, it is the chief justice,” said Kourlis, a former Colorado Supreme Court justice whose organization campaigned for the changes. “There can’t be lip service anymore. There won’t be a judge or lawyer anymore who can say, ‘It’s not my problem.”

In a statistical appendix to his report, Roberts also reported that caseloads in 2015 decreased at the Supreme Court and federal appellate courts, as well as at federal district and bankruptcy courts.

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