The titivated Rule 1 of the Federal Rules of Civil Procedure will take effect on December 1, 2015. After four score years, the newest incarnation of this idealistic rule1 will provide as follows:
“These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed to secure the just, speedy, and inexpensive determination of every action and proceeding.” (Emphasis added.)
If justice2 means a trial before a jury of one’s peers, nowadays, one percent of federal cases are tried.3 Thus, the vast majority of causes are never fully heard on the merits, speaking volumes about justice and fairness.4 The speed of case dispositions varies wildly from a glacial pace5 to the much-vaunted “rocket docket.”6 The median time to disposition in 2012 for cases that were tried was 23 months.7 Besides, expedition, without more, ensures neither fairness, nor a just result.8
As for the burgeoning expense of federal litigation, it is sparked to life, and fueled, by the complex nature and protracted duration of the cases, filing of frivolous actions, court backlogs, opponents’ delays, runaway costs (including e-discovery), and astronomical attorneys’ fees.9 Then, add to that combustible mix deposition costs, expert witness fees, translation costs, appellate attorneys’ fees and costs, and you have a conflagration Nero could really fiddle about.
Given such a generally tortoise-like10 and steeply-priced legal system, the stark reality is that, as to the lion’s share of cases – while they are, in judicial jargon, “terminated” – they are, in fact, being disposed of by means of nuanced niceties, and procedural technicalities, if not compelled alternative dispute resolution (e.g., mandatory mediation(s)).11 Additionally, half-hearted settlements are entered into by parties long-fatigued by the system, faltering beneath the crushing burden of demands upon time and resources, and drowning in alarming amounts of lawyers’ fees.12
We should decry the dwindling opportunities for oral argument and trials in federal court. They rapidly are becoming a lost art. Practitioners miss out on mentoring and, for younger lawyers, practical learning experiences. The bench suffers, too, as the quality of oral advocacy deteriorates and judges are deprived of the manifold benefits of hearing opposing counsel in order to render better-informed rulings.
Many times, trial counsel do not meet with the judge until the Final Pretrial Conference. Certainly, motions have largely become the stuff of push-button endeavors. We have fostered an impersonal and inferior juridical environment which has devolved into “jurisprudence by correspondence.”
If we have learned nothing else in seven plus decades, we must concede the fact that the rules are neither self-executing, nor self-policing. We could have 80 rules behind Rule 1, or 8,000; what will it matter if we do not all seek out justice?13
The district judges—who wield broad-ranging and potent powers to sanction parties and attorneys under Rule 11, Title 28 U.S. Code Section 1927, and the court’s inherent authority—all too infrequently invoke such august powers. If real reform is to come, it must come in the form of the judges arresting, correcting, and sanctioning major and material and egregious transgressions by parties, non-professional and unethical deportment by lawyers, of every stripe. The judges also must bear down and try a greater percentage of cases.14 Initiatives must be made in the sphere of intellectual property (i.e., patent) cases.15 If the federal government spent as much money improving the administration of justice as it does on building new courthouses, the systemic improvements could be impressive.16
We attorneys must vigorously oppose frivolous filings and abstain from discovery abuses. Staffing on cases should be Spartan; not multi-layered like onions. Summary Judgments are not merely high-stakes gamesmanship designed to elongate a case or pad the lawyer bills.17
Let us attempt to fulfill the dated-vintage dream of Rule not only with open minds, but also with eyes wide open.18 To that end, we would do well to remember that ancient Japanese proverb: “[v]ision without action is a daydream; action without vision is a nightmare.” SB
1“It is the spirit and not the form of law that keeps justice alive.” Attributed to Earl Warren (U.S. Supreme Court Justice, 1891-1974).
2“If we do not maintain justice, justice will not maintain us.” Attributed to Francis Bacon (English Philosopher, 1561-1626).
3Stephen N. Subrin & Thomas O. Main, The Fourth Era of American Civil Procedure, 162 U. PA. L. Rev. 1839 (2014).
4“Fairness is what justice really is.” Attributed to Potter Stewart (U.S. Supreme Court Justice, 1915-1985).
5“Justice delayed is justice denied.” Attributed to William E. Gladstone (British Statesman, 1809-1898).
6“Justice and judgment lie often a world apart.” Attributed to Emmeline Pankhurst (English activist, 1858-1928).
8“Swift justice demands more than just swiftness.” Attributed to Potter Stewart (U.S. Supreme Court Justice, 1915-1985)
9See generally EMERY G. LEE III & THOMAS E. WILLGING, FED. JUDICIAL CTR., LITIGATION COSTS IN CIVIL CASES: MULTIVARIATE ANALYSIS (2010).
10 “Justice is like a train that is nearly always late.” Attributed to Yevgeny Yevtushenko (Russian Poet, 1933- )
11“The law isn’t justice. It’s a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be.” Attributed to Raymond Chandler (American writer, 1888-1959).
12Gulliver’s Travels, Jonathan Swift (Irish writer, 1667-1745) as Gulliver remarked to the King of Brobdingnab:
“Upon what I said in relation to our Courts of Justice, his Majesty desired to be satisfied in several points: and this I was better able to do, having been formerly almost ruined by a long suit in chancery, which was decreed for me with costs. He asked what time was usually spent in determining between right and wrong, and what degree of expense. Whether advocates and orators had liberty to plead in causes manifestly known to be unjust, vexatious or oppressive…”
13“The more laws, the less justice.” Attributed to Marcus Tullius Cicero (Roman Statesman 106-43 B.C.)
14Query why we need ”trial judges,” if ninety-nine percent of the federal cases never reach trial? Let us have a cadre of federally-certified mediators or persuade or incentivize more parties to agree to consent-jurisdiction trial before U.S. Magistrate Judges, pursuant to Title 28, U.S. Code §636(c).
15“History or custom or social utility or some compelling sense of justice or sometimes perhaps a semi-intuitive apprehension of the pervading spirit of the law must come to the rescue of the anxious judge and tell him where to go.” Attributed to Benjamin N. Cardozo (U.S. Supreme Court Justice, 1870-1938)
16Thirty three new federal courthouses were completed between 2000 and 2010 at an estimated construction cost of $835 million and $51 million, annually, to operate and maintain.
17“It is a maxim among these lawyers, that whatever hath been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind.” Attributed to Jonathan Swift (Irish writer, 1667-1745).
18 “The virtue of justice consists in moderation, as regulated by wisdom.” Attributed to Aristotle (Greek Philosopher, 384 B.C.-322 B.C.).
Published in Sidebar, the Federal Litigation Section of the Federal Bar Association, Fall 2015