One decade ago, Congress undertook an ambitious, controversial effort to reduce expense and delay in the federal civil justice system. The Civil Justice Reform Act ("CJRA") of 1990 instituted unprecedented nationwide experimentation by requiring that all ninety-four federal district courts scrutinize their civil and criminal dockets and then promulgate and apply numerous procedures which district judges believed would save cost and time in civil litigation. Congress also prescribed rigorous assessment of the six principles, guidelines, and techniques of litigation management and expense and delay reduction that federal districts in fact adopted and enforced. Lawmakers provided for an expert, independent evaluator that was to collect, analyze, and synthesize s1stematically relevant empirical data on certain aspects of the testing. Moreover, legislators requested that the Judicial Conference of the United States, the policymaking arm for the federal courts, study additional features of experimentation, which principally implicated differentiated case management ("DCM") and various forms of alternative dispute resolution ("ADR"). Congress asked that the Judicial Conference submit a report and recommendations to lawmakers and the president on both dimensions of the testing which the federal districts had conducted.
Congress mandated implementation of this national experiment, which it intended to conserve fiscal and temporal resources, even though minimal empirical data demonstrated that the federal district courts actually experienced serious delay when resolving civil disputes. Furthermore, Congress prescribed effectuation of this expansive, costly experiment with measures for decreasing expense and delay in civil litigation, even though similar efforts in numerous states and in a significant number of federal districts suggested that the courts had exhausted practically all of the advantages that they could derive from procedural reforms.
It should not have been surprising, therefore, that the comprehensive evaluation, which the Institute for Civil Justice of the RAND Corporation performed at the instruction of Congress, ascertained that the judicial case management mechanisms prescribed and implemented by districts pursuant to CJRA may have saved some time but only minimally reduced cost in civil cases. Moreover, the Judicial Conference rejected extension of the six statutorily-enumerated principles, guidelines, and techniques of litigation management and expense and delay reduction beyond the ten pilot federal district courts that experimented with these approaches. The Judicial Conference correspondingly suggested an alternative program to conserve economic and temporal resources.
During 1996, the Judicial Conference Advisory Committee on the Civil Rules appointed a Discovery Subcommittee to explore whether those provisions of the Federal Rules of Civil Procedure that govern discovery required amendment. The Discovery Subcommittee astutely commissioned recent studies by the RAND Corporation Institute for Civil Justice and by the Federal Judicial Center, the principal research arm of the federal courts. The new evaluations found that discovery functioned comparatively well as a general matter and created the greatest difficulty in a rather small percentage of relatively complex cases. Nonetheless, the Judicial Conference substantially modified several significant features of pretrial discovery, a process which is essential to modern civil litigation. The Conference instituted important changes for all civil lawsuits in the scope of discovery and in the strictures that cover mandatory prediscovery disclosure.
These two vignettes of contemporary public policymaking in the areas of federal civil justice reform and federal civil procedure resist easy understanding and might even appear to be somewhat counterintuitive. Nevertheless, a recent law review article, authored by Professor Michael Heise,Justice Delayed?: An Empirical Analysis of Civil Case Disposition Time, 50 Case W. Res. L. Rev. 813 (2000), illuminates those stories and informs our understanding of the federal and state civil justice systems more broadly.
All of the propositions above mean that Professor Heise's valuable contribution deserves a response. This essay undertakes that effort. The initial section of the paper provides a comparatively brief descriptive assessment of Justice Delayed?. The second part of this Response considers how Professor Heise enhances our appreciation of the two initiatives examined above and of civil justice reform generally. The third part offers a number of recommendations for future treatment of the federal and state civil justice processes.
Carl Tobias, Civil Justice Delay and Empirical Data: A Response to Professor Heise, 51 Case W. Res. L. Rev. 235 (2000)