Procedural Flexibility in Three Dimensions
39 Pages Posted: 15 Mar 2018 Last revised: 27 Apr 2018
Date Written: March 11, 2018
Parties in civil litigation have at their disposal countless procedural entitlements. In federal court, for example, parties are entitled to discovery, including ten depositions, twenty-five interrogatories, and an indefinite number of requests for the production of documents. In cases “at common law,” parties have a right to trial by jury. Under the “final judgment rule,” parties have a right to one appeal at the end of a case — but not before. And on and on.
But what happens when a party doesn’t want its entitlement, or feels that its entitlement is not enough? This raises two questions. First is the question of judicial discretion: can the judge modify the procedural rules and entitlements? This is an important question, but it is not our subject in this paper. The short answer to this question, though, is “yes.” Second is the question of what we label procedural flexibility: Can parties modify procedural rules and entitlements on their own?
The answer to this question varies widely across procedures. Parties can simply agree to increase (or decrease) the number depositions or interrogatories, or document requests. Yet parties cannot agree to overlook the “final judgment rule.” And there are intermediate cases of procedural flexibility; parties can agree not to have a jury when they are entitled to one, but they can’t grant themselves a jury trial merely by agreement. Does this mish-mash of approaches to procedural flexibility make sense?
Viewing procedure through a wider lens reveals three dimensions of procedural flexibility, which we label “Which procedures?,” “Which cases?,” and “Which type of flexibility?” We show that all three dimensions of procedural flexibility can be utilized to design novel reforms that can reduce litigation cost, increase tailoring of procedure to parties’ needs, reduce court congestion, and improve distributional equity.
In this paper, we examine each of these three dimensions of procedural flexibility. Our approach is primarily normative, in that we set out a framework for assessing how, when, and which procedures can and should be subject to modification by parties. We show that considering all three dimensions of procedural flexibility may require us to revise current views about which procedures belong in the “core” and may open up new avenues for reform.
Suggested Citation: Suggested Citation