Simplified rules of federal procedure?

• Author: Cooper, Edward H.

FOREWORD

Writing in 1924, seventy-eight volumes ago, Professor Edson R. Sunderland began The Machinery of Procedural Reform with this sentence: "Much has been said and written about the imperfections of legal procedure." (1) Much of his article describes circumstances in which procedural reform occurred only in response to conditions that had become "intolerable." A decade later, Congress enacted the Rules Enabling Act that still provides the framework for reforming federal procedure. (2) The Enabling Act establishes a deliberate and open process for amending the rules initially adopted under its authority. It may take longer today to consider and adopt a single rule amendment than the original rulesmakers took to create the original body of Civil Rules. (3) The process surely provides the "close and pains-taking study of an intricate mechanism which is necessary for successful regulation" that Professor Sunderland hoped for. (4) It is difficult to be as confident about the overall effect of the painstaking changes that have gradually accumulated since the Civil Rules first took effect in 1938.

It may be inevitable that a continuing revision process lengthens the rules and adds complexity to them. Doubts grow up around old solutions, and new problems appear. The Civil Rules have not escaped this effect. Yet time and again, the Rules adhere to a pervading characteristic. The effort is less to provide detailed controls and more to establish general policies that guide discretionary application on a case-specific basis. Many a district judge may view one provision or another as an unwarranted intrusion on the proper sovereignty of a trial court, but vast discretion remains at virtually every turn. It does not yet seem fair to charge the revision process with a descent into the niggling detail and sterile ossification that have overtaken earlier procedural systems.

Rigidity is not, however, the only danger to be avoided. Discretion is a useful rulemaking technique when it is difficult--as it almost always is--to foresee even the most important problems and to determine their wise resolution. Reliance on discretion is vindicated only when district judges and magistrate judges use it wisely most of the time and in most cases. The ongoing revisions of the Civil Rules time and again reflect an implicit judgment that confidence is well placed in the discretionary exercise of power by federal trial judges. In a wonderful way, there may be an interdependence at work--the very fact that there is discretionary authority to guide litigation to a wise resolution may enable us to attract to the bench judges who will use the authority wisely. It is not clear beyond dispute, but let us assume that the open-textured reliance on trial-judge discretion is working well. Even then, another set of questions remains.

Open-ended rules that call for wise discretion cannot depend on the wisdom of trial judges alone. The structure of our courts--considered in relation to the volume of litigation, the structure of the legal profession, and the basic nature of an adversary system--requires reliance on the willingness of litigators to work within the general spirit of the rule structure. One cause for concern is doubt whether we have sufficiently contained the risks of inept misuse and the temptations of deliberate strategic over-use of the rules. There are some grounds for reassurance on that score, noted tangentially below, but also grounds for continuing concern. A different cause for concern is that the sheer power of the rules structure, with the concomitant complexity and cost, has grown out of proportion. Some litigation that might better be brought in federal court may be discouraged, either to go to state court or to vanish without filing.

This fear that the Federal Rules of Civil Procedure provide too much procedure for some cases underlies a current Advisory Committee project. The Simplified Rules project was launched at the suggestion of Judge Paul V. Niemeyer during his term as Advisory Committee Chair. Part of the inspiration for considering adoption of an alternative and simplified procedure was the ongoing work on The American Law Institute/UNIDROIT Principles and Rules of Transnational Civil Procedure. (5) The evolving transnational rules model involves, among many other things, a paring back and simplification. This Introduction is a brief description of the general issues that surround a vaguely similar undertaking to simplify federal procedure for an uncertainly defined subset of cases. The pages that follow set out the first draft to be submitted to the Advisory Committee, (many) imperfections and all.

The basic character of the draft is easily described. The draft proposes more detailed pleading, enhanced disclosure obligations, and restricted discovery opportunities. Other provisions seek to reduce the burden of motion practice and establish an early and firm trial date. The core justification for this approach is that current reliance on notice pleading and searching discovery puts too much weight on time-consuming and expensive discovery. This justification deserves a few more words of examination, after a preliminary look at the question of choosing the cases that might come within the simplified rules.

Draft Rule 102 is no more than a preliminary sketch of the issues that must be addressed in determining the cases that might come within a set of simplified rules. It was drafted for purposes of illustration, suggesting the issues by seeming to resolve them. It would make application of the rules mandatory in an action "in which the plaintiff seeks only monetary relief and the amount is less than $50,000." Rather complicated provisions contemplate application to other actions by consent of the parties and exclude certain categories of actions. All of the other rules depend on the choices made in determining which cases are covered. As one simple illustration, a decision to apply the rules only when all parties consent would open the possibility of discarding jury trial. Any attempt to discard jury trial without party consent would require such elaborate justification, and encounter such stiff resistance, as to impede seriously, if not fatally, any serious attempt at adoption.

The justification for attempting to frame a simplified procedure must withstand many challenges. Most of the challenges raise empirical issues. Two sets of empirical issues lead the list. One ties directly to the definition of cases covered by the rules--it makes little sense to create a set of rules for cases that do not, and should not, come to the federal courts. The other set goes directly to the underlying premise: are the present rules in fact too complex, too full of opportunities for excessive lawyering and strategic manipulation, to work well with some cases that do, or should, come before the federal courts?

The draft that applies the simplified rules to all actions that seek money only, and less than $50,000, prompted the question whether such actions exist in the federal courts. The Federal Judicial Center--a constant source of valuable assistance in considering empirical rules-reform questions--undertook to examine the data currently available. Looking at all cases filed in federal courts from 1989 through 1998--some 2,248,547 cases--they found that information about a stated money demand greater than $0 was available for only 610,002, less than 28%. Of this reduced set of cases, 236,212 involved demands from $1 to $50,000. Another 103,326 involved demands from $51,000 to $150,000. (6) It is not possible to assume that the same distribution would hold for all cases if the amount of the dollar demand were known for all. That more than one-half of the cases in this subset involved demands for less than $150,000 is an interesting datum, but little more. That nearly a quarter of a million cases in ten years involved less than $50,000 is more tangible. If there is otherwise reason to fear that the Civil Rules provide more procedure than is appropriate for relatively small-dollar litigation, there are cases enough to justify further consideration.

That observation leads directly to the empirical question whether general federal procedure is indeed too elaborate for many of the actions brought in federal court. There are many reasons to question the premise that federal procedure often proves unnecessarily burdensome. Empirical studies of discovery have repeatedly disclosed that for most cases in federal court no discovery occurs, or only a few hours are devoted to it. (7) Recent amendments have sought to reduce the burden of discovery still further by adopting and then modifying disclosure requirements and by providing for the Rule 26(f) meeting of the parties. Many practicing lawyers have reported that the Rule 26(f) meeting has proved useful. If lawyers actually confer about the realistic needs of the case, they commonly agree to behave reasonably.

The counterpoint to assertions that federal procedure is too elaborate for some cases commonly is that state procedure is more suitable. But many state systems are modeled on the federal rules, and outsiders are not likely to view the more distinctive state systems as more efficient. If there is a point in this comparison, the most likely support lies in the procedures adopted for state courts of limited, not general, jurisdiction.

Even if there is reason to fear that general federal procedure should not apply in all its sweep to every case in federal court, it is not clear that "general federal procedure" is as procrustean as the champions of simplified procedure may claim. The Civil Rules provide many opportunities for tailoring procedure to the realistic needs of individual actions. Judges are given general and discretionary authority to cabin discovery and to manage the litigation. Vigorous use of this authority can directly limit the dangers of excessive procedure...