A joint project by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System recommends radical changes in the discovery rules in civil lawsuits. During discovery, each side pursues evidence from the other side to help them advance their claims or defenses. Traditionally, this has involved the exchange of documents and taking depositions (oral examinations under oath) of the other side, their witnesses and their experts. With the advances in technology and information that is available on computer hard drives, cell phones, copy machines and the internet, the amount of information available is increasing in geometric proportions. The problem? The increasing cost associated with that discovery and the increase in time that it takes to get a case to trial.
This project was developed by attorneys for both claimants and defendants and lasted almost two years. It is a "bipartisan" effort to make the civil trial system more efficient, without giving either side an unfair advantage in the process:
"If you want to talk about a system that is affordable and efficient and not used as a weapon to force settlement, as it is today in many cases, then you have to have limitations," said Paul C. Saunders, chair of the ACTL task force on discovery and a partner at Cravath, Swaine & Moore in New York…
Saunders said the task force, drawn from the experienced trial lawyers of the ACTL, came from both the plaintiffs’ and defense bar. The proposals fall no harder on the plantiffs’ bar than on the defense, he said.
"One of the most significant aspects of this is that a group of lawyers with as much experience as the College came together in one voice and said, ‘We have problems and we need to fix them,’ " said Rebecca Love Kourlis, executive director of the institute and former Colorado Supreme Court Justice.
The task force’s central theme was proposing restrictions on civil discovery that would streamline the process. The idea is to have the trial court putting strict requirements on the parties to put all of the relevant evidence on the table early on and then limiting the amount of subsequent discovery. Their recommended limitations included:
— Redefine "relevance", the threshold for discovery.
— Limit who may be subject to discovery requests.
— Limit types of discovery.
— Impose numerical limits, such as 50 hours of deposition time.
— Eliminate deposition of experts.
— Limit time for discovery.
— Shift costs, or co-pay rules.
— Impose financial limits.
— Set client-approved discovery budgets.
From a claimant’s perspective, cheaper and quicker is good, but not if it allows the defendant to hide the "smoking gun." This is the first of what I am sure will be many steps toward dealing with the problem presented. I am not sure how to keep the competing concerns balanced, but this appears to be a good start. If something viable develops, it will be reform that everyone should endorse.
Cum Laude graduate of Cumberland School of Law, Pet Mackey is a civil trial litigation expert who represents plaintiffs in business and consumer tort, contracts and construction, employment disputes and insurance. He is board certified as a Civil Trial Advocate by the National Board of Trial Advocacy, a Certified Alabama Mediator, and an “AV” rated lawyer by Martindale-Hubbell.