Here is a potentially transformative idea that I raised at the recent Symposium at Harvard Law School on Civil Gideon.
Maybe it is time to rethink the Federal Rules Project.
Back when the Federal Rules were first being put in place in the 1930’s, everyone assumed that everyone would have a lawyer, and no one had ever heard of computers or even photocopiers.
Yet those Rules, or versions with only relatively minor modifications, govern a huge percentage of the civil cases in the US.
Is it any wonder then that the system is choking on itself?
The Rules, after all were an access project, something we often forget, and we need to re-think what would facilitate accessibility in this new era.
While it is way too early to analyze what 21st century rules would look like, here are a few thoughts:
Burden of pleading, proof and production — these should be radically rethought in a world of massive databases, and corporate data aggregation. As a general matter, those with more information should be required to provide it much earlier — think about the mortgage fiasco and the damage it did the world economy.
Discovery — again, needs rethinking, refocusing, and a structure that puts more emphasis on who has or should have the data.
Compliance — the Rules Project did not nothing on compliance, and we still live with the unanticipated consequences. As a general matter, and with protection against corporate overreach, we should make the courts more responsible for ensuring compliance, as has happened in the child support area.
Who moves the litigation — the Rules Project did not change the fundamental tradition that lawyers move cases (sometimes) and courts respond (sometimes). The caseflow management movement can best be seen as a response to the partial recognition that this is not enough. But, today, we need a much more fundamental re-think of this assumption. So everything about motion practice (the hardest maybe for the self-represented) has to be rethought.
You will be hearing more from me about this. I welcome thoughts not only on substance but also on strategy. Where do we get this conversation going? In law schools? In access commissions? At the Courts?