CHICAGO, Dec. 11, 2009 – New data from an American Bar Association Section of Litigation survey on the rules for the civil justice system show that a significant number of respondents believe that pretrial discovery can be excessive – potentially increasing the cost of litigation, delaying the resolution of cases and denying the public a “just, speedy and inexpensive determination” as called for by the Federal Rules of Civil Procedure.

The survey, conducted last summer involving almost 3,300 section members, is part of an effort by the Civil Rules Advisory Committee of the United States Judicial Conference to gather a wide range of views and empirical evidence as part of a holistic approach to examine the current system of civil litigation for possible reform. The results of the section survey, along with data from other organizations, will help set the agenda for reform of the federal civil justice system.  The results will be presented at a major national conference in May 2010 at Duke University that is being convened by the committee. The section has been invited to participate in the conference.

The relevance of the survey and the advisory committee’s review of the Federal Rules of Civil Procedure is underscored by opposition in Congress to two Supreme Court decisions that effectively change the federal rules. Seeking to control excessive discovery, the Court established a higher standard of proof in both the Twombly and Iqbal cases, effectively limiting access to the courts.

The survey results show consensus among plaintiff and defense lawyers to make litigation more expeditious and less expensive. Results also indicate that solutions to excessive discovery should focus on collaboration among lawyers and active case management by judges.

This comprehensive review of the rules that govern civil practice in federal courts is the first major overhaul effort since 1938.  Many in the legal community believe that the review is long overdue considering several 21st century trends — new and ever-changing technology, the use of the courts to enforce social policy, the evolution of class actions and mass torts, and the global context in which law and business now operate.

The survey data is outlined in an article that appears today in Litigation News, a monthly electronic publication for section members.  The article can be found at http://www.abanet.org/litigation/litigationnews/top_stories/federal-rules-civil-procedure-changes.html. A summary of the survey results, a detailed report of the data, and the survey questionnaire can be found at http://www.abanet.org/litigation/survey/1209-report.html.
In addition, a summary of key findings appears immediately following this release.

“The ABA Section of Litigation is committed to studying and promoting change on significant issues that touch the quality of the civil justice system.  Our diverse and non-partisan membership is a cross section of those engaged in the civil justice system,” explained Lorna Schofield of New York, chair of the Section of Litigation. “Our results suggest that dramatic solutions to the problems of the civil justice system that upset the balance between plaintiffs and defendants will be perceived as unfair and undermine the legitimacy of the rule making process, and even the justice system.  No matter how troublesome the problems, any solution must be evenhanded.  By providing the advisory committee with input from our members and leaders, both in the survey and at the conference, we will be part of the effort to fashion change that will be fair and will bring our system into this century.”

“It is time to take a careful but comprehensive look at how a system of rules adopted in 1938 – the year the ballpoint pen was patented – can be modified to serve the needs of litigants and the justice system in an age of computers, electronic data and substantially higher costs than could ever have been envisioned in seventy years ago,” continued Schofield.

The section has formed a committee headed by Loren Kieve, San Francisco, and Daniel Dowd, Phoenix, that is studying the survey data and possible solutions for the problems identified in the survey. As part of the process to build consensus and identify what needs to be done, the section will host a mini-symposium for lawyers, judges and academics at its leadership meeting in January in New Orleans to discuss the issues.

The ABA Section of Litigation represents about 68,000 lawyers, judges and others involved in all aspects of litigation and the dispute resolution process. It is the national voice for litigators and a leader in advocating improvements in the justice system.  The section provides tools and resources to assist lawyers to be better litigators as they serve their clients. It offers opportunities for growth, learning and networking through its professional communities. Its activities reflect and support the commitment of its members to a strong, diverse ad vibrant profession, a fair and accessible justice system, and the continuing obligation to achieve both through a wide range of pro bono activities.

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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Note to Editors: For more information on the survey and data, please refer to the attached fact sheet.  For additional background on the section’s work, including the upcoming symposium and conference, please contact Debbie Weixl in ABA Media Relations at 312/988-6126. Additional information on the section can be found at www.abanet.org/litigation.