That’s what the survey’s say:
Key findings of the survey of the trial lawyers group’s more than 3,800 members include:
? That court pleadings and the Federal Rules of Civil Procedure too often are used as leverage to force a settlement, rather than to better define and move a case ahead toward trial.
? That judges don’t do enough to control excessive discovery (particularly e-discovery, which can be extremely expensive).
? That the current system works well for some kinds of cases, such as individual tort claims, but is unwieldy for mass tort claims, ERISA cases and administrative law actions, among others.
So if it’s going to cost more to go through the discovery process than you would win as a result of the case, what’s a litigant to do?
First of all, let me just say that, as a non-lawyer, it seems to me that the Federal Rules, especially regarding e-discovery, seem pretty straightforward. I don’t really see any reason why opposing parties can’t meet, and come to an agreement on reasonable discovery terms. Maybe there’s something I’m missing by looking at them from more of an outsider perspective, but they seem pretty simple to me. If they don’t come to an agreement, it’s the duty of the judge in the case to make them. I can only assume then that you have attorney’s who refuse to be cooperative, and judges who lack the resources, or knowledge, to take control of the discovery process, that both parties are part of the problem right now.
Technology can only do so much. Everyone is waiting for the magic bullet that will make e-discovery costs manageable, but no technology can make up for people not coming to reasonable compromise. Search technology and culling will get better as time goes on, but if you don’t agree on search terms, or how to cull documents, the tech is useless!
Here’s the thing, if costs continue to go up, fewer and fewer people will even bother to seek justice in the Courts. Why bother? Even if you win you’ll end up broke?
Of course, if you’re a litigation attorney, that’s the last thing you want. Fewer people bothering to bring a suit means fewer cases, fewer clients, and fewer billable hours. If that doesn’t provide enough incentive to work on some solutions, I don’t know what will!
Any way you look at it, this entire area of the legal industry is very much in flux, and promises to stay that way for a long while.