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2009
Volume 36 Litigation, No. 1

What Is To Be Done

American Bar Association, The Journal of the Section of Litigation
Robert E. Shapiro

Reprinted with permission from the American Bar Association, The Journal of the Section of Litigation.

It seemed like a good idea at the time. And, mostly, it was. By the middle of the last century, the then-existing model of civil litigation and trials seemed as unworkable as it was unfair. Pleading rules had become too arcane, a constant trap for not just the unwary, but even the most conscientious of litigators. Cases with seeming merit went down to defeat because of a host of unmet procedural niceties. There were little means in a case of apparent wrongdoing to get behind the surface facts and develop the record further. Early resolution was difficult. Trial by ambush was the formula of the day. However much litigation tended to emphasize and foster the skill of natural trial lawyers, it left too many cases at the mercy of more workman¬like types without any particular flair or the means to prepare. In a world in which the size and complexity of matters seemed ever greater, and the means of exploring them had changed but little, something had to be done.

So it was. The changes made in the federal rules in 1948 sparked a revolution in how cases were filed, developed, and resolved. Central to the new model was the novel idea of shifting the emphasis away from both the initial pleading stages and the concluding trial and allowing for an extended period in the middle we now know of as discovery. Aided by the "reasonably calculated" standard of relevance, this was to be exactly what it seemed, a process by which each side could discover as much as it wanted, or at least needed to, about the other side's case. No longer would seemingly worthy cases die at the initial planting, or on the vine, solely because the pleading forms could not be met or the true merits of the case could not be developed and explored. More lax pleading rules and more expanded learning tools would see to that.

Trials too, while still important, would become less essential. Particularly in commercial cases, with access to nearly complete information regarding the strengths and weaknesses of both sides of the matter, sophisticated parties could properly calculate the odds. They could and would reach a workable compromise through the now-familiar formula of discounting the full value of a claim by a factor based on the chances of success, with attorneys' fees extra.

Just how successful this change in focus has been can be measured by the fate of the highly experienced commercial trial lawyer. He has all but disappeared. Most litigators are not trial lawyers at all, not in the sense used 60 years ago, but experts in the discovery process, motion practice, and settlement negotiations. Even what trials there are tend to be preliminary injunction hearings or arbitrations. Young lawyers often get no real trial experience, unless they take on pro bono cases, and in some circumstances, seldom get into court for any reason. Discovery and brief writing are the staple of the modern civil litigator. As popular as shows like Law and Order or even Boston Legal tend to be, most litigators numbed by the tedium of their motions, briefs, discovery demands, depositions, and settlement statements, find it predictably difficult to recognize themselves or their practices in the dramas that parade across their TV screens.

The decline in trial skills, now the focus of countless trial advocacy programs, might be a source of regret, but it would seem more than a fair trade if the new discovery-based model fostered the efficiency, prompt resolution, and fairness the framers of the rules envisioned. But, from the perspective of the first decade of the new millennium, it is difficult not to say that, measured by these standards, the federal rules reforms are an outright failure. This is not to say that the stated goals have been completely elusive. There are still many cases that get resolved quickly, quietly, and fairly.

But it is far from assured these days, in any particular case, that any one of the central objectives, let alone all of them together, will be met. Frivolous cases get filed and long survive the pleadings stage, forcing innocent parties into a long, expensive process of discovery that represents a major drain on resources and energy. Discovery on both sides goes on forever and seems to serve almost every purpose besides the true sharing of information. Outcomes, including those at trial, seem more, not less, arbitrary, or at least unfair. And the entire judicial system seems to be creaking under the weight of too many lawsuits, too many motions, too many delays, too many abuses, and too much expense.

What went wrong? A lot of things. Indeed, almost everything, though in many cases, the drafters were not to blame. For one thing, they could not have anticipated the two greatest body blows to the orderliness and efficiency of the discovery process—the invention of the Xerox machine and the Internet. The former meant that, suddenly, in every case, there would be thousands and thousands of documents. In the 1970s, the big antitrust cases employed scores, even hundreds, of young lawyers sifting through millions of pieces of paper that might, perhaps, reveal a smoking gun or an exonerating fact. Lawyers were trained in document management skills, and paralegals became essential to every major case. Depositions featured a mind-numbing exploration of a tall stack of documents methodically presented to the witness in multi-day examinations.

But the worst, or at least worse, was yet to come. Now in the twenty-first century, similar teams of lawyers review millions or even billions of e-mails, even in the most routine cases. These chart the communications and activities of the relevant players on a daily, hourly, or even moment-to-moment basis, over years. Discovery disputes regarding what kind of electronic searches should be permissible and who is going to pay for them have become standard fare. Lawyers have become as proficient in the language of metadata, native files, and blow-backs as the rules of hearsay and laying a foundation. Sanctions loom as a constant threat to anyone who wittingly, or even unwittingly, fails to do a proper review or find all that the client has. Sometimes cases have been about only who did what search when and what it yielded, rather than any substantive issue.

External phenomena like the copier and the digital revolution are not, by any means, the sole challenges to the manageability of the contemporary civil litigation process. There have been procedural add-ons as well. These include the development and expansion of the class action, which has added another collective party and special rules of proceeding and settlement. They have upped the ante on numerous cases where there is or could be a claim of similarly situated plaintiffs. This has now been supplemented by the so-called collective action, an opt-in rather than opt-out process, where the standards for initial certification have been correspondingly lowered and plaintiffs routinely obtain from the defendant the names of all their employees who are potential plaintiffs, soliciting them thereafter under court sanction. Fee-shifting provisions have changed the calculus of settlement in many cases. Alterations to substantive law, providing parties with remedies not available before, for conduct not previously actionable, have also played a role.

And let's not forget the wiles of the lawyers themselves. Smart, determined, and sharply motivated by the possibilities for fame or fortune, lawyers as a group have made it their business to game the system. If discovery was invented to provide a means of finding out about the other side's case, it could also be a means to hide the ball, divert attention, or embarrass and harass the other side. Consider in this context what has happened to the now-lowly interrogatory. You can understand the drafters' thought process, surely. Need a piece of information about the other side's case? Just ask it in the form of an intelligible question, and in 30 days you will get the information you need. No need to wait to ask a witness in a deposition or to cross-examine at trial. What could be simpler?

As it turned out, almost anything. Both sides began to misuse the process almost immediately. Those propounding interrogatories tried to overwhelm the other side with dozens upon dozens of such questions, asking and re-asking often pointless questions in a manner well calculated to harass and cause expense. Those answering didn't answer at all, stating huge numbers of objections and providing only the information they wanted to provide, regardless what was asked. The response of the courts to the first abuse was to limit the number of interrogatories. But only the more-considered intervention of the courts could make the answers better. Most lawyers found they didn't have the time to seek court review. When they did, the results hardly seemed worth it. The outcome? One eminent federal judge famous for having pioneered revisions to the interrogatory rule commented to this journal that no litigator worth his license ever gave away anything truly useful beyond the names of a few witnesses in response to an interrogatory.

Similar problems beset almost every other facet of the discovery rules. When was the last time a deposition really provided you with information you needed or didn't have? Depositions still serve a purpose, of course, generating admissions or allowing one to close off the other side in case of trial. But new information? Not so much. In so many cases, the lawyers know they are going to know no more about the case at the end of the deposition process than they do at the start. Among other things, electronic data often supply more detailed information than questioning ever could. But lawyers do the depositions anyway. Clients will complain otherwise, during the discovery process itself, because the lawyer is perceived as not tough enough. Or later, if things go wrong, for having botched the handling of the case. So much that happens during the discovery process seems to have little to do with real discovery, as a result.

These realities have promoted all kinds of other irregularities and negative consequences. Sometimes it seems that only rich clients can afford litigation at all, given the costs and demands of e-discovery even in a routine matter. And then there has been the effect on lawyering. Having spent most of their professional lives not doing real trials, lawyers have not just lost the fine art of free cross-examination, knowing how to question only with the crutch of a deposition by their side. They have also forfeited the broader perspective that trials bring. They have developed a more narrow-minded and often nasty ethic, which diverts their attention from the orderly resolution of the matter as a whole, in their roles as officers of the court, to the fierce wielding of discovery devices in the service of their client's selfish interests. So what began as an effort to promote efficiency, speediness, and fairness has turned upside down. Lawsuits are cumbersome, time-consuming, expensive, and productive of very little that might be described as fair or just. And, to paraphrase Hobbes, the life of a litigant is "solitary, poor, nasty, brutish, and short."

Not too long ago, a remedy seemed at hand: arbitration. Here was a mechanism to make cases go faster, cost less, and result in expert decision making. Matters would move quickly because pleading and motion practice would be kept to a minimum and discovery would be severely truncated. Hearings would come along quickly and lawyers deprived of depositions would have to learn to cross-examine without them. Trials would be fairer. In place of the inexpert jury, hopelessly trying to make sense of a complex dispute, often without good help from inexperienced trial lawyers, persons knowledgeable in the field would make the decisions. Resolution would be not just faster, but better.

Okay, so maybe not. Anyone who has gotten tied up in an important arbitration in recent years knows how hollow these claims tend to be. Without genuine pleading, very little is often learned about either side's case until the matter is far along. A frivolous case can never be tested. Discovery disputes are just as violent, even if the amount of discovery tends to be less. Trials are anything but quick, and arbitrators lack the training to be able to manage trials well or provide the kinds of even-handedness that judges are taught through years of practice. Instead of coining up with a detailed and careful explication of the facts, arbitrators tend, in the modern nonsensical parlance, to "split the baby," merely dividing the possible damages into something like what seems to them to be an equitable division of spoils.

Most important, arbitration, while not correcting many of the evils of trials, seems to have denied us their benefits. Developed over centuries, the jury trial features a series of rules that at least make it fair. The rules of evidence are, in a sense, the distillation of centuries of consideration of which kinds of things are probative and which not, which things a jury may fairly see and which not, which things are dependable for decision making and which not. Arbitration, by changing these rules, often results in unfairness. That unfairness does not affect plaintiffs more or defendants more, but rather one side or the other, depending on the circumstances. There is almost always in arbitration one side that is at a significant disadvantage as a result of the shift away from the trial rules. It's just that no one can predict which side.

This is a sorry tale indeed, as unwelcome as it was unexpected. Certainly it does not mean that the mid-century reforms were wrong-headed, even if they should remind us that the unintended consequences of major reforms, though hard to fathom, have to somehow be reckoned with. The world changes. New laws come on the books. Tinkering never ceases. And lawyers are too smart and too highly motivated not to reach for and find ways of circumventing or manipulating the system. Any attempt to prevent it is doomed to failure. Lawyering is as sure to redirect, not to say pervert, reform as money is to affect politics. Attempts to stifle it are like squeezing a balloon. The air just moves someplace else.

So is there anything that can be done? One might better ask whether we have any choice but to do something. Can the system bear much more of this? It is more than a little uncertain whether it will be able to withstand the next major information revolution. And what about the deterioration in professionalism? Or the loss of confidence we are suffering in the quality of the outcome? The story is told of an average homeowner who sought legal redress for expensive, if rather ordinary, damage caused to his house by an unqualified contractor. Advised to reduce his claim slightly so as to come within the jurisdictional maximums of a small-claims court and thereby expedite the process, the homeowner refused. Why, asked the somewhat baffled lawyer. "Because I want justice," retorted the client. "Well, you've come to the wrong place," was the lawyer's rejoinder. "We do only law here."

The law seems to be failing us, which may be one reason the best and the brightest often burn out faster and go elsewhere. In the face of such concerns, one might fairly ask what the response of those responsible for protecting the law has been. Judges and legislators have the job of ensuring that the judicial process is sufficiently workable and fair to instill trust and confidence. They have not been unbusy.

The Supreme Court has recently weighed in with the tandem cases of Twombly and Iqbal, the stated purpose of which is to "not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." The pleader does not have to plead the facts of the case, as in days of old or a few recalcitrant state procedural systems like Illinois. But, under Twombly, there must still be more than a scant group of propositions, indeed enough to somehow be construed as making the claim "plausible" and justifying relief. Iqbal has now standardized the process, calling for a two-step approach. First, all that are mere conclusions are excised from the complaint. Then the remaining allegations are reviewed to see if, in the High Court's memorable phrasing, they "nudge" the case over from mere "possibility" to "plausibility."

It is fair to say that Twombly and Iqbal have received a great deal of play, making their routine appearance in virtually every motion to dismiss filed these days. Whether for better or for worse is difficult to say, unless you always represent plaintiffs or always defendants, which will inevitably mean "for better" in the latter case and "for worse" in the former. Do they represent genuine change? Conclusions were never supposed to be considered, and it is difficult to argue with plausibility as a standard. But, under the top-down approach of the earlier Conley v. Gibson regime, deconstructing a claim in this way seldom took place. The question was whether there was any claim that might possibly be sustained. If so, it was on to discovery, no questions asked.

Now, with these untried categories of "plausibility" and "possibility," the district court gets to test the details of the complaint against a certain overall "gut feel" for the action generally. It could be argued that this is merely a shift in emphasis, asking courts to be a bit more chary in accepting claims and starting discovery. Perhaps after a certain point, all the commotion will die down, with an only minor shift to the right in the viability of claims. But it is somewhat concerning that this may be instead an invitation to mere arbitrariness, given how little real content there is to the Court's new standards.

It might also be asked why, if the 1948 amendments were working properly, we would want this shift to occur anyway. Suffice it to say that this question has not formed much part of the legislative response. Instead, legislators professing to be greatly troubled by the threat to those less in the know or the rights of the disadvantaged have hastened to advance legislation to overrule the Supreme Court's decisions. Their ideological adversaries, armed with lurid tales of litigation abuse, have been almost as stalwart in defense. The high dudgeon exhibited by both sides in this quarrel has not been matched by high seriousness or high-mindedness. Real consideration where the system is heading has not been much in evidence.

Of course, it did not help that the Supreme Court so shamelessly fibbed in changing the standards, claiming in Twombly that Conley v. Gibson had already ceased to be the prevailing rule. It hadn't. Rather than just come out and say that the rule needed to be changed, and making the policy case for it, the Supreme Court pretended merely to be saying out loud what everyone already knew was the case, causing the dissenters to turn almost apoplectic in their incredulous response. Amidst such doings, we can hardly complain that rough and tumble legislatures respond in kind.

This kind of drama has been played out in numerous other contexts in the last couple of decades, in both procedural and substantive matters. A more restrictive approach in the legislature has often provoked a judicial resolve to open matters up. Liberalizing legislatures have often run afoul of less accommodating courts. And so it continues. The advent of the Obama administration, and a dominant liberal majority, have stimulated calls for change in the laws to overturn the procedural and substantive decisions of the last decade of a more conservative judiciary—and will continue to do so, until the next change in the political winds causes another reversal of roles.

Whatever side you take in this controversy, and even if you just have faith in the ying and yang of politics to generate positive results, you might want to ask if there is a better way. If what's really happening is that the reforms of the 1940s, however well intended, have begun to go wrong, an approach that never considers the wood for the trees would hardly seem to be the best option. Tinkering in the service of ideological preference seems unlikely to get it right in the long run, dooming us to a judicial process that is ever more likely to misfire.

Better to ask whether a fundamental reconsideration of the discovery-oriented model is now necessary. Twombly itself might have sparked such a consideration had the Court been a little less intent on trying to appear conservative while making changes. Setting aside other considerations, were the changes good ones in light of the problems we face? Is it enough to raise the bar slightly for pleading a claim? If you set aside for a moment more self-interested motives, your answer to this might depend on how well or how badly you think the system is doing generally. But even if you think it is mostly holding its own, that the system is sagging but not about to break, a gander forward might still cause you to wonder whether the time has indeed come for real reform, before the next technological tsunami or the continued jimmying of the laws or the further deterioration of professionalism or all three, take hold.

What would such a reform look like? After all, what other alternatives are there between the pleadings and trial-oriented process that predominated before 1948 and the discovery-oriented process that exists now? Hard to know. But the difficulty of the undertaking is no excuse for never considering. Before the modern federal rules, probably only a handful of visionaries ever conceived of the kind of discovery process that is the bread and butter of our contemporary litigation. We need the help of such visionaries now to see if there is still a third, and a better, way.

There are a few goals and observations that must guide any such process going forward. Surely we need something more streamlined than what we have at present, and ultimately more fair. The scope of discovery ought to acknowledge the worthlessness from a learning standpoint, not to mention the unnecessary expense and potential for abuse on both sides, of much of the current discovery process. And any revision should at least try to take account of the certainty that lawyers will try to work the system to their clients', and their own, advantage. And always keep in mind those unintended consequences.

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Litigation, published quarterly, is the preeminent journal in the field of trial practice. The publication offers practical yet lively information on common problems and interests for the lawyers who try cases and the judges who decide them.

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