Lee & Willging, Attorney Satisfaction with the Federal Rules of Civil Procedure

Emery G. Lee III and Thomas E. Willging, both of the Federal Judicial Center, have published Attorney Satisfaction with the Federal Rules of Civil Procedure: Report to the Judicial Conference Advisory Committee on Civil Rules (2010). Here is the executive summary:

This report provides a brief comparison of the results of three surveys on the current operation of the Federal Rules of Civil Procedure (“Rules”). These surveys asked attorneys in the American College of Trial Lawyers (“ACTL”), the American Bar Association Section of Litigation (“ABA Section”), and the National Employment Lawyers Association (“NELA”) to respond to a series of statements regarding the Rules. The Federal Judicial Center (“FJC”) did not administer the ACTL survey, but it did administer the ABA Section and NELA surveys. Respondents in the ACTL survey had many more years of practice, on average, than respondents in the other surveys. The following findings are discussed in this report:

• Members of the ABA Section tended to agree that the Rules are conducive to the goals stated in Rule 1 (“to secure the just, speedy, and inexpensive determination of every action and proceeding”), but ACTL fellows and NELA members tended to disagree.
• The statement, “The Rules must be reviewed in their entirety and rewritten to address the needs of today’s litigants,” elicited more disagreement than agreement in each of the surveys and among all groups (plaintiff attorneys, defendant attorneys, and attorneys representing both plaintiffs and defendants about equally).
• The statement, “One set of Rules cannot accommodate every type of case,” elicited more disagreement than agreement from ABA Section and NELA members, and more agreement than disagreement from the ACTL fellows.
• The statement, “Trial dates should be set early in the case,” elicited more agreement than disagreement with every group except ABA Section defendant attorneys.
• The statement, “Discovery is abused in almost every case,” elicited more disagreement than agreement from the ACTL fellows and ABA Section plaintiff attorneys, and more agreement than disagreement from NELA members and other ABA Section members.
• The statement, “Economic models in many law firms result in more discovery and thus more expense than is necessary,” elicited more agreement than disagreement in each of the surveys and among all groups.
• The statement, “The cumulative effect of the changes [enacted since the Pound Conference in 1976] has significantly reduced discovery abuse,” elicited more disagreement than agreement in every survey and among every group except ABA Section plaintiff attorneys.
• The statement, “Intervention by judges or magistrate judges early in the case helps to limit discovery,” elicited more agreement than disagreement in each of the surveys and among every group.
• The statement, “Judges do not enforce Rule 26(b)(2)(C) to limit discovery,” elicited more agreement than disagreement in each of the surveys and among every group, although ABA Section plaintiff attorneys were almost evenly divided.
• The statement, “Summary judgment practice increases cost and delay without proportionate benefit,” elicited more agreement than disagreement from plaintiff attorneys in each of the surveys and more disagreement than agreement from defendant attorneys and those representing both plaintiffs and defendants about equally.
• Attorneys in all three surveys reported that costs were disproportionate to the value of some cases, although respondents in the ABA Section and NELA surveys tended to answer that costs are not disproportionate to the value of large cases.
• In all three surveys, the most common response to the question asking about “the primary cause of delay in the litigation process” was “time to complete discovery.”

Respondents to the NELA survey were also asked a series of questions about the impact of the Supreme Court’s recent pleadings decisions [known as Iqbal and Twombly] on employment discrimination cases. The most commonly reported impact was the inclusion of additional facts in the complaint, followed by an increase in the number of motions to dismiss filed by defendants. Few respondents, however, reported that any of their employment discrimination cases had been dismissed under the new standard.

Tags: Civil litigation, Civil litigation information systems, Civil procedure, Discovery, Emery G Lee, Empirical methods in legal informatics, Federal Judicial Center, Federal Rules of Civil Procedure, Iqbal, Judicial Conference of the United States, Judicial Conference of the United States Advisory Committee on Civil Rules, Legal case management, Legal case management information systems, Legal communication, Legal evidence information systems, Legal pleading rules, Summary judgment, Thomas E Willging, Twombly