The Need for Truly Systemic Analysis of Proposals for the Reform of Both Pretrial Practice and Evidentiary Rules: The Role of the Law of Unintended Consequences in 'Litigation' Reform
42 Pages Posted: 12 Apr 2012
Date Written: April 12, 2012
It is a commonplace observation that human actions often have unintended consequences. That observation applies to changes in the law. New statutes and statutory amendments frequently have unforeseen impacts. Those impacts can be negative effects that outweigh any good achieved by the change in the law.
The thesis of this article is that in many instances of litigation reform, there is an identifiable reason for the untoward consequences: the failure of the policymaker or drafter to subject the proposal to a truly systemic cost/benefit analysis. The proponents of changes in pretrial practice sometimes neglect to advert to the potential impact on trial evidence, and for their part the advocates of changes in evidence law may fail to address the possible effects on pretrial practice. Section III of the article uses the enactment of Federal Rule of Evidence 612 and the 1993 amendment to Federal Rule of Civil Procedure 26 as illustrations of this phenomenon.
In contrast, Section IV points to the recent discussion leading to the adoption of Federal Rule of Evidence 502 as an example of a preferable systemic mode of analysis. The article urges that in the future proponents of changes in both pretrial practice and evidence law should engage in this type of systemic analysis. There is a dynamic relationship between the pretrial and trial phases of the litigation process, and a reformer’s failure to address the other stage of the litigation process exponentially increases the risk that the law of unintended consequences will come into play. The article emphasizes that it is especially vital that evidentiary reformers conduct such an analysis, since today the importance of the pretrial phase dwarfs that of the trial. Even a minor negative impact on the 98% of the cases terminated without trial can outweigh a seemingly significant improvement in the evidence rules applied in the 2% of the cases that go to trial.
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