May 10-11, 2010: Civil Litigation Conference at Duke Law School

A live Webcast is available for the 2010 Civil Litigation Conference, sponsored by the Judicial Conference of the United States, and being held 10-11 May 2010 at Duke University Law School in Durham, North Carolina, USA.

The conference will focus on empirical research on U.S. federal civil litigation, including research on lawyers’ satisfaction with the Federal Rules of Civil Procedure, judicial decisions (Iqbal and Twombly and cases applying them) respecting pleading rules, ediscovery, the “vanishing trial”, incentives for settlement, and experimentation and proposals respecting civil litigation reform in U.S. states, including research conducted by the Institute for the Advancement of the American Legal System at the University of Denver (IAALS).

Click here for the conference program.

Click here for information about the conference from Duke Law.

Click here for an article about the conference from Tony Mauro at National Law Journal.

Reagan, National Security Case Studies: Special Case-Management Challenges

Robert Timothy Reagan of the Federal Judicial Center has published National Security Case Studies: Special Case-Management Challenges (2010). Here is a summary:

National security cases often pose unusual and challenging case-management issues for the courts. Evidence or arguments may be classified; witnesses or the jury may require special security measures; attorneys contacts with their clients may be diminished; other challenges may present themselves.

The purpose of this Federal Judicial Center resource is to assemble methods federal judges have employed to meet these challenges so that judges facing the challenges can learn from their colleagues experiences.

These case studies include background factual information about a selection of national security cases as well as descriptions of the judges challenges and solutions. The information presented is based on a review of case files and news media accounts and on interviews with the judges.

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.

New Report on Sealed Cases in Federal Courts

A new report entitled Sealed Cases in Federal Courts (2009) has been issued by the U.S. Federal Judicial Center. The authors are Tim Reagan and George Cort. Here is the abstract:

“An analysis of all cases filed in federal district courts, bankruptcy courts, and courts of appeals in 2006 revealed that 0.2% of civil cases, 1.6% of criminal cases, 16% of magistrate judge cases, 34% of miscellaneous cases, and 0.1% of appeals were sealed approximately two years after filing. Cases filed in bankruptcy courts are virtually never sealed. This report, prepared for a sealed case subcommittee of the Judicial Conference‘s standing Committee on Rules of Practice and Procedure, describes why and how cases were sealed.”

Note that the report covers only cases filed in 2006.

eDiscovery Developments in US Federal Courts

Two recent developments respecting electronic discovery in U.S. federal courts may be of interest.

First, the Federal Judicial Center has published National, Case-Based Civil Rules Survey: Preliminary Report to the Judicial Conference Advisory Committee on Civil Rules (October 2009). Here is the abstract:

“This report presents preliminary findings from a survey of attorneys in recenty closed civil cases which the Federal Judicial Center conducted in May and June 2009. Nearly half of the attorneys invited to participate responded. The report covers discovery activities and case management in the closed cases; electronic discovery activities in the closed cases; atorney evaluations of discovery in the closed cases; the costs of litigation and discovery; and attitudes toward specific reform proposals and, more generally, the Federal Rules of Civil Procedure.”

Second, this month the United States Court of Appeals for the Seventh Circuit launched an Electronic Discovery Pilot Program, and published a Statement of Purpose and Preparation of Principles (Oct. 1, 2009) respecting that program.

Both the FJC report and the 7th Circuit program will be discussed at two upcoming conferences:

• The Annual Meeting & Judicial Conference of the Seventh Circuit Bar Association, to be held May 2-4, 2010, in Chicago (details about the conference will be announced on the bar association’s Website);
• Conference of the Judicial Conference of the United States, Advisory Committee on Civil Rules, to be held May 10-11, 2010, at Duke University (for details, see the Nixon Peabody announcement (please scroll down)).

HT @PosseList & Nixon Peabody LLP.