Chief Justice wants less gamesmanship by lawyers
on Dec 31, 2015 at 6:01 pm
Speaking in soft but plain words, Chief Justice John G. Roberts, Jr., used his year-end report on Thursday night to urge lawyers who practice in federal courts to take steps to help improve the efficiency, and reduce the cost, of trying cases. Roberts also added some strong encouragement for judges who preside over federal civil trials to take greater control of the management of cases, rather than leaving the process to the tactics of the competing lawyers.
To draw contrasts with the goals he was promoting, the Chief Justice brought up the chivalric but discredited practice of dueling to preserve one’s honor after being slighted or insulted. Recalling that experience, Roberts said it serves as “a stark reminder of government’s responsibility to provide tribunals for the peaceful resolution of all manner of disputes.” For courts to provide justice, he added, they “must be governed by sound rules of practice and procedure,” and he said both lawyers and judges in the federal system must make those rules work.
The Chief Justice said he was focusing the 2015 annual report on the federal courts on the efficient and less costly operation of those courts in order to highlight a broad new set of amendments to the Federal Rules of Civil Procedure, developed over a five-year study period and put into effect this past December 1. They have the Supreme Court’s approval and that of the policy-making machinery of the federal court system, and Congress chose not to alter them..
While many rules’ amendments “are modest and technical,” Roberts said this new set of rules “are different” because they were drafted “to address the most serious impediments to just, speedy, and efficient resolution of civil disputes.” He put a good deal of emphasis, throughout his remarks, on the courts’ “discovery” process — that point before a trial opens when lawyers are demanding information from the other side with the aim of helping their side of the case when the trial gets underway.
For years, federal judges and critics of the modern court system have criticized what they call “discovery abuse,” meaning time-consuming and excessive information demands that slow down the process significantly and yet push up the cost because of lawyers billing during that sometimes lengthy process.
Turning to his admonition to lawyers to make the system of litigation work better, Roberts bluntly remarked: “I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.” Lawyers, he added, must work together cooperatively to chart cost-effective litigation and to achieve “just results.”
Turning to the presiding federal judges, the Chief Justice urged them to get involved very early in the process of litigation, rather than waiting for lawyers to “dictate the scope of discovery and the pace of litigation.” It is up to the judge, he commented, to “identify the critical issues, determine the appropriate breadth of discovery, and curtail dilatory tactics, gamesmanship, and procedural posturing.”
Attached to the text of the Chief Justice’s remarks was the annual compilation of data about the operation of the federal courts, including the Supreme Court.