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March 1 — Creating a court system centered around the “just, speedy and inexpensive determination of every action and proceeding” requires a collaborative effort by both the bench and the bar to ensure such results. With so much of the legal system's attention focused on clients' needs and outcomes and attorneys' personal financial goals, it is sometimes difficult to remember the purpose of the American judiciary is primarily to serve the public.
“The folks who come to the court have something really important going on in their lives,” Judge Jeremy Fogel, of the Northern District of Calfiornia, said at a panel at the Fourth Civil Justice Reform Summit Feb. 26. “We need to be there to help them.”
Education is key in assisting the judges, court administrators and court staff whose job it is to focus on the goals of Federal Rule of Civil Procedure 1. A panel of judges at the Summit explored the ways in which the court system can further that goal.
Just results are the focus of the litigation system, but they come with a caveat: the language requiring actions to be both speedy and inexpensive as well.
“As judges, we often focus on ‘just' resolutions,” Judge Jeffrey Sutton, of the Sixth Circuit Court of Appeals, noted. “But if these determinations aren't speedy and inexpensive, even if you get to the right place, you really have to wonder if the result of the litigation captures the concept of ‘just.' ”
Robert D. Owen, of Sutherland Asbill & Brennan LLP, attended the Summit and agreed with Judge Sutton's assessment.
“My fear about the civil justice system right now is that the middle class of citizens and companies is being discouraged from the federal courts because of how difficult, expensive and risky the eDiscovery challenges have made litigation,” Owen told Bloomberg BNA Feb. 29.
Owen is also the president of the non-profit eDiscovery Institute.
“It's remarkable how significant the phrase ‘just, speedy and inexpensive' is,” Owen continued. “Just results are great, but as I reminded the Rules Committee in my own comment [during the rulemaking period], it is a preponderance of the evidence system.”
According to Owen, the advent of eDiscovery has created diversions that encroach on the goals of Rule 1. For example, in the event that electronic evidence is lost, the litigation system still has at its disposal witnesses, trials, juries and judges to compensate for the absence of specific data.
“It's tempting as a lawyer to make everything perfect but that's expressly not the standard in the civil system,” Owen told Bloomberg BNA Feb. 29.
What's the best way to get judges and their staff on track to accomplish the goals of Rule 1? Education is a starting point for those judges and court personnel who remain entrenched in their own particular way of operating.
“We have mechanisms to educate and inspire,” Judge Lee H. Rosenthal, of the District of Texas, said at the Summit. “We need to make it clear to all judges that better case management is in their self-interest.”
Judge Rosenthal explained that the argument must be made to the bench that this type of case management means less work all over for the ones wearing the robe.
Judge Rosenthal said that case management templates, manuals and recurring types of case management orders that can be specifically tailored to particular cases are all appropriate mechanisms for making case management easier.
Judge Balmer agreed, noting that these focuses would require a culture change and serious leadership.
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