Access to the civil justice system increasingly at risk
An expanding campaign about legal technicalities, if successful, would have real consequences for plaintiffs and their counsel: further limitations on effective prosecution of, and meaningful damages recoveries in, employment law, civil rights, and consumer protection cases. The backers of this agenda often talk about the issue as one of “reform.” A close look at the changes sought, however, reveals that the proposed amendments to court rules would deform rather than reform the nation’s legal system in significant ways. Therefore, it is important to oppose the pending initiatives concerning the Federal Rules of Civil Procedure.
Under the proposed changes, Rule 30 would slash the time for deposing a witness by more than half, potentially encouraging obstructionist tactics to run out the clock, so to speak, during depositions. In addition, Rule 33 would be “reformed” to cap interrogatories at 15, including all subparts. Strikingly, requests for admissions pursuant to Rule 36 would be limited to 25 – when no limits whatsoever exist under the current Rules. Perhaps most telling of all, Rule 37 would be revised to restrict sanctions on defendants who fail to preserve relevant evidence, including electronically stored information. Given the escalating gamesmanship in litigation, such a reduction in accountability mechanisms is counterproductive to put it mildly.
Although not officially part of the “reform” effort, it warrants repeating that Rule 56 continues to be misapplied by some courts around the country. In short, certain judges essentially make credibility determinations and weigh evidence while denying claimants’ right to a trial by a jury of their peers. This is contrary to the plain language of Rule 56 and the long-standing Supreme Court precedent. Perhaps paradoxically, such an approach to Rule 56 has increased the workload of the Federal judiciary because defendants in employment law, civil rights, and consumer protection matters now bring voluminous summary judgment motions in virtually every case.
As Judge Mark Bennett recently observed in a thoroughly researched and well reasoned law journal article, it would be more efficient and fair if courts simply allowed parties to try their cases before juries. Indeed, that seems most faithful to the Framers’ intent in drafting and adopting the Seventh Amendment to the United States Constitution.