Discontent Over Civil Litigation Creates Backdrop for Judicial Conference

Corporate counsel almost unanimously agree that civil litigation is too expensive, while 90 percent say that it takes too long, according to a new survey conducted for a major judicial conference on civil justice that convenes next week.

The conference, which will take place at Duke University School of Law on May 10 and 11, brings together key federal judges, lawyers and academics to discuss the need to reform civil rules and practices on issues ranging from electronic discovery to the use of experts. The impact of recent Supreme Court decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, raising requirements for what must be included in initial pleadings in civil cases, is another major focus of the two-day conference. The main sponsor is the U.S. Judicial Conference's Advisory Committee on Civil Rules.

The meeting responds to recent surveys indicating that those involved in civil litigation see "significant problems of cost and delay," said Judge John Koeltl of the U.S. District Court for the Southern District of New York, the conference organizer. Even before it opens, the conference is being compared to the historic Roscoe Pound Conference of 1976, held in St. Paul, Minn. to discuss civil justice problems, which launched several reforms. "This conference hopes to build on the legacy" of that meeting "and all it contributed to the reform of the administration and delivery of justice in the federal system," said Judge Mark Kravitz of the U.S. District Court for the District of Connecticut. Kravitz chairs the civil rules advisory committee.

To prepare for the meeting, the Institute for the Advancement of the American Legal System canvassed chief legal officers and general counsel who are members of the Association of Corporate Counsel from around the country. Fifty-five percent agreed the civil justice system is "too complex," while 97 percent agreed that it is "too expensive." In addition, 80 percent disagreed with the statement: "Outcomes are driven more by the merits of the case than by litigation costs."

On the issue of pleadings, nearly 75 percent of those surveyed said that so-called "notice pleadings" -- short statements of a complaint -- make it difficult to identify the issues of litigation at an early stage. The high court's Twombly and Iqbal rulings sought to increase what must be included in initial pleadings, but consumer advocates say the bar is too high, and have sought help from Congress in undoing the rulings. Other critics think the decisions amounted to improper changes in the federal rules of civil procedure, and hope the conference will lead to clarification of the rules. The rulings have been cited in hundreds of decisions on whether to dismiss civil suits.

"The organized federal judiciary is trying to take charge, and that's a good idea," said Alan Morrison, associate dean of George Washington University Law School, and former director of Public Citizen Litigation Group. "This is a big deal event." Morrison said the conference has already generated dozens of research studies, papers and surveys. "Empirical research proves certain things," Morrison said, "but does it tell us how to improve?"

Koeltl said the Duke conference does not mean that the federal judiciary has decided to amend or clarify the rules on pleadings. "We don't go into the conference with a predetermined set of conclusions," the judge said. "That's why we spent so much time on empirical research." Koeltl added that "the civil rules committee is very much looking at Iqbal and Twombly and its effects."

John Vail, vice president of the Center for Constitutional Litigation, said that while some of the studies that will be presented at Duke are empirical, others, like the survey of corporate counsel, are not, and represent the desire of businesses to "create a whole different set of rules for themselves." Vail said.