The Cost-and-Delay Narrative in Civil Justice Reform: Its Fallacies and Functions
Posted: 1 Jun 2012 Last revised: 14 Oct 2015
Date Written: January 1, 2012
For the past three decades, common wisdom in the legal profession has maintained that the cost of trials, and the trial process itself, are too time-consuming and too expensive to maintain. In May 2010, elite lawyers, federal judges, and prominent legal scholars gathered at Duke Law School to discuss these issues and the future of civil process in the federal courts. Most participants agreed that the focus of federal rules reform should be reigning in the high costs and delay of civil litigation. In a world of electronic discovery and electronically stored information, the costs of litigation were undoubtedly skyrocketing. If discovery had always been ripe for abuse, the ubiquity of electronically stored information made it all the more so. Yet empirical data presented at the conference told a different story. The Federal Judicial Center (FJC) reported that in its study of federal cases that had closed in the 2008 calendar year, the median cost of litigation for defendants was $20,000, including attorneys’ fees. For plaintiffs, the median cost was even less, at $15,000, with some reporting costs of less than $1600. Rather than out-of-control discovery costs emerging from the electronic discovery era, the FJC found median discovery costs represented 3.3% of the amount at stake in litigation.
The results were surprising to those in attendance, but they shouldn’t have been. The FJC’s 2009 data were consistent with a line of similar studies conducted every few years and dating back to the late 1960s. Empirical work has simply never provided support for the widespread belief that the system takes too long, costs too much, and is in desperate need of repair. There exists a significant discrepancy between the common sense understanding of the civil justice system, driven by what I call the “cost-and-delay narrative,” and the picture that develops from the empirical studies. This Article seeks to understand the resilience of the cost-and-delay narrative in the face of empirical data that would seem to undermine it. To do so, this Article carefully analyzes the latest data on federal civil process showing that, even with the substantial changes in practice over the last decade, there is remarkable continuity in the findings of empirical studies. Equally consistent, this Article explains, is the cost-and-delay narrative itself, which has thrived for decades. The longevity of the cost-and-delay narrative should raise alarm bells, because it provides support for efforts to foreclose access to civil courts. Building on the work of scholars, including Arthur Miller, who have long sought to bring this discrepancy to light, this Article contextualizes the cost-and-delay narrative, and the reforms for which it is used to advocate, as part of a political struggle over the nature of the regulatory state and the proper role of courts.
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