Preliminary Look at a Preliminary Report on Civil Rules Posted By Daniel Kaiser, Esq. on November 23, 2009
Emery G. Lee III and Thomas E. Willging of the Federal Judicial Center recently released their Preliminary Report to the Judicial Conference Advisory Committee on Civil Rules. You might be thinking to yourself, “Wow, a 191-page preliminary report.. on Civil Rules.. what’s in it for me?” A fair question, but actually this thing is pretty interesting.
To begin at the end, I was intrigued to find 77 pages of feedback from survey respondents classified according to the clients they represent: plaintiff’s attorneys, defendant attorneys and attorneys representing plaintiffs and defendants about equally. Predictably, voices from the plaintiff’s attorney sector are pointing out abuses of discovery perpetrated by defendant attorneys adversely affecting both the duration and cost of the process… while similar voices from across the isle are complaining of discovery abuse on the part of plaintiff attorneys. (Maybe these guys could get together and talk?)
Moving on to the survey’s actual findings, here are a few intriguing statistics all taken from attorney feedback following closed cases:
- Figure 11 – By far, most attorneys (72.4% of plaintiff attorneys and 78.3% of defendant attorneys) reported no ESI disputes in their closed case.
- Figure 13 – Both plaintiff and defendant attorneys reported, for the most part, that the information produced by party-generated discovery was “just the right amount.”
- Figure 14 – A similar majority of both plaintiff and defendant attorneys found that their discovery costs were “just the right amount” when compared to their client’s stakes.
- Figure 17 – Most attorneys, regardless of which side of the “v.” they hail from, agree that “the parties in the named case were able to reduce the cost and burden of the named case by cooperating in discovery.”
- Figure 19 – When asked how discovery costs affected settlement, the most frequent response by far was “no effect.”
- Table 10 – In cases involving discovery costs, plaintiff attorneys estimate those costs to be a median of 1.6% of their client’s estimated stakes. Defendant attorneys estimate a median of 3.3%. (Perhaps this gives credence to the defendant attorneys’ perspective, as mentioned above in survey respondent feedback.)
- Figure 37 – Nearly all respondent attorneys agree that “attorneys can cooperate in discovery while still being zealous advocates for their clients.”
This is just a small sample of what the report has to offer. It’s worth taking a look.
Illustration by Carlos Castellanos © 2008
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