Time To Make A Difference . . . . .

I have always believed in the role of a lawyer to make things better – to maintain the high quality of our judiciary, improve efficiencies in how we practice law, better prepare law students for the practice of law, more quickly instill practical skills in young lawyers, and improve diversity.  Doing these things and whatever else inspires and impassions you will bring a spring to your step.  We may not get paid for it with currency, but the reward comes from realizing “you made a difference.”  That is reward enough. This is one such time.  There are important changes being proposed to the Federal Rules of Civil Procedure.  The proposals are part of a multi-year process that will hopefully culminate in a new set of rules by 2015.  But the opportunity to participate in the process is now upon us.  This is a call to arms to ensure your voice is heard by the Committee on Rules of Practice and Procedure, which has proposed the rule changes and invited public comments.

There are many significant changes being proposed by the Committee, but they have a common theme: Let’s get back to the essential principles of Rule 1 of the Federal Rules of Civil Procedure, which proclaims that disputes should be resolved in a just, speedy, and inexpensive manner.   This is not just a cost-saving measure.  We need to get back to a point where cases are decided on the merits and, yes, tried before juries.  The reduction in the number of cases being tried does not come from a fundamental distrust of our jury system.  To the contrary, when you look at the overall outcomes, our jury system has an enviable record of success.  But that journey can be riddled with excessive costs, disruption, and delay.   When standing at the starting line of a legal dispute, the client must look not just where the merits may take the case, but also what must be endured to reach the point of resolution.   On balance, that can lead to a decision to settle a weak case on the merits rather than place the merits in the hands of the jury far down the road.  A survey conducted for the Association of Corporate Counsel found the 80 percent of general counsel and chief litigation counsel disagree with the statement:  “Outcomes are driven more by the merits of the case than by litigation costs.”

I am one of them.

One significant change proposed by the Committee will limit the scope of discovery under Rule 26.  The seemingly limitless standard of the current rule – allowing discovery of any matter relevant to the subject matter of the lawsuit, including anything that is reasonably calculated to lead to the discovery of admissible evidence – drives over-reaching discovery requests and overly-broad preservation notices.  The new proposal would limit discovery to the “claims or defenses” in the lawsuit and “proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”  These are important changes that will allow discovery to be scaled to each individual case. There are also some significant proposed changes to Rule 37(e) which revise and clarify the circumstances under which a party can be sanctioned for failure to preserve discoverable information.  The proposed rule would permit sanctions only if the failure to preserve was “willful or in bad faith” and caused “substantial prejudice.”  The rule would also permit courts to order lesser but undefined “curative measures” under some circumstances.   he proposed changes to Rule 37(e), though not perfect, are the right step down the path of allowing cases to be decided on the merits rather than through discovery gamesmanship.

I urge you to engage.  You surely have a perspective to share that will be of value to the Committee.  But do so quickly: the public comment period lasts only until February 15, 2014.  Your comments should be submitted to the Committee directly to its website. If you need more details and context, feel free to go to the website of Lawyers for Civil Justice, an excellent organization where I serve on the Board.

Get involved.  Make a difference.  That is our responsibility as lawyers–improving our profession and the system of justice within which we are privileged to participate.

BIOGRAPHY: Timothy Pratt is a guest author at the Abnormal Use law blog. He is the general counsel of the Boston Scientific Corporation and president of the Federation of Defense and Corporate Counsel.

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