• March 12, 2010

Back in 1992, the City of Los Angeles was engulfed in riot and flames after the video-taped police-beating of Rodney King who, on the third day of the rioting, went on television and implored, “People, I just want to say, you know, can we all get along?”  53 deaths, 2,383 injuries, more than 7,000 fires, damages to 3,100 businesses, and nearly $1 billion in financial losses later and the answer is “Often yes, sometimes no.”

On a microscopic scale, the costs of litigation are like the costs of social conflict.  In many cases, we can get along.  Unfortunately, from time to time, we cannot.

The Federal Judicial Center has sponsored a report:  Attorney Satisfaction with the Federal Rules of Civil Procedure, Report to the Judicial Conference Advisory Committee on Civil Rules.  

The FJC report is the result of surveys of ABA Litigation group lawyers, a plaintiff’s lawyer trade group, and an employment lawyer’s trade group.  As such, there were predictable trends, defense lawyers feeling like too much discovery is sought, plaintiffs’ lawyers not so troubled on that score but feeling like defense lawyers raise the cost of discovery through uncooperative discovery tactics.  

Interestingly, the statement, “Economic models in many law firms result in more discovery and thus more expense than is necessary,” elicited more agreement than disagreement in each of the surveys and among all groups.  There is no question that the much-maligned billable hour can create skewed incentives.  On the other hand, discovery in civil litigation is about seeking information from an adversary with which to defeat the adversary.  Cost and conflict seem inherent and no one seems to have been able to devise a better system yet to balance fact-finding costs with the truth-finding goal.

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