Another View of the New FRCP Rules

by John Lande
December 2015

Indisputably

John Lande

I recently posted an item citing the IAALS’s work touting the benefits of the new amendments to the Federal Rules of Civil Procedure.

For a counterpoint, here’s a draft article by SMU Professor Elizabeth G. Thornburg, Cognitive Bias, the ‘Band of Experts,’ and the Anti-Litigation Narrative.  Here’s the abstract:

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect.  This article argues that the consistent pattern of discovery retrenchment is no accident.  Rather, a combination of forces is at work.  The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents.  In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse.  Further, predictable cognitive biases take this blend of politics, elite and often defense-side experience, and corporate manipulation of public opinion and blind the Rules Committee members to the possibilities of solutions that expand rather than contract information sharing.  This article considers these phenomena, and recommends more heterogeneous committee membership, the use of deliberative processes that are more likely to overcome flawed heuristics, and greater reliance on non-opinion-poll data in the rulemaking process.

Here’s a paragraph from the introduction:

 

Section II of this article will use the currently pending discovery rule amendments as a case in point, highlighting the ways in which the committees’ recommended changes will tend to favor the interests of large entities resisting discovery.  It will argue that the proposals are not reasonably calculated to accomplish their stated goals, thus supporting a fear that they are either purposely crafted to limit litigation or based on a mistaken view of federal litigation realities.  First, the proposals claim to be aimed at controlling excessive costs in the small percentage of large cases where they occur, but their proposals are unlikely to affect those cases.  The proposed amendments align poorly with the alleged problems, so that the explanation is a mismatch for the proposals.  Second, the committees’ expressed justifications for the changes rely heavily on opinion surveys while discounting more reliable closed-case data and the recommendation of the FJC’s own empirical experts.

Biography


John Lande is the Isidor Loeb Professor at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.

 

 

 



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