Comments in Opposition to the Proposed Amendments to the Federal Rules of Civil Procedure
9 Pages Posted: 3 Feb 2014
Date Written: January 31, 2014
These are Professor Moore's public comments in opposition to the recent proposed amendments to the Federal Rules of Civil Procedure. The proposed rules amendments are ostensibly intended to address the so-called "cost and delay" of civil litigation. Professor Moore offers four observations. First, the most objective and reliable measure of "cost" before the Committee is contained in the 2009 closed-case study by the Federal Judicial Center, which shows neither out-of-control costs nor an increase in costs over time. Second, one objective and reliable measure of "delay" is case disposition time, a statistic maintained by the Administrative Office of the Courts. The AO's statistics show that the median disposition time for a civil case (from case filing to final disposition) has maintained stability for twenty-five years, from 7 months in 1986 to a still-brisk 7.8 months in 2012, a difference of about 24 days. Third, contrary to the Committee's apparent belief, lawyers and judges are well aware of the concept of "proportionality" in discovery and apply it frequently. Fourth, the federal courts are widely perceived to favor defendants, and the adoption of these proposals will intensify that perception, because the proposals do favor defendants.
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