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Widening the Lens: Refocusing the Litigation Cost-And-Delay Narrative

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Widening the Lens: Refocusing the Litigation Cost-And-Delay Narrative WIDENING THE LENS: REFOCUSING THE LITIGATION COST-AND-DELAY NARRATIVE Arthur R. Miller† TABLE OF CONTENTS INTRODUCTION ................................................................................................................... 58 I. COST AND DELAY: PHENOMENON OR PHANTOM? ................................................... 59 II. OF JUSTICES, JUDGES, CONGRESS, AND THE RULEMAKERS: THEIR IMPACT ON LAWYER BEHAVIOR, COST, AND DELAY .............................................................. 68 A. The Influence of Federalism ........................................................................... 68 B. The Effect of Twombly and Iqbal on Civil Litigation ................................. 71 C. Summary Judgment and Class Actions ........................................................ 79 D. End Note .......................................................................................................... 83 III. THE DEPRECIATION OF THE MEANINGFUL DAY-IN-COURT PRINCIPLE ................. 84 A. Pleading and Early Termination ................................................................... 85 B. The Flight to Arbitration and Other Forms of Alternative Dispute Resolution ........................................................................................................ 86 IV. WHERE DO WE GO FROM HERE? .............................................................................. 92 A. The Case for Doing Nothing .......................................................................... 92 B. The Rejection of Transsubstantivity and the Tracking of Cases ................ 96 1. Tracking in the Existing System ....................................................... 97 2. Tracking Systems in Other Countries ...........................................100 a. The British Tracking System ...............................................100 b. The German Tracking System ............................................101 c. The Japanese Tracking System ...........................................102 3. Barriers to Tracking .........................................................................104 C. Judicial Management ...................................................................................106 1. Philosophy .........................................................................................106 2. The Role and Responsibilities of Judges ........................................107 † University Professor, New York University. I greatly appreciate the valuable research and editing help provided by my 2018 New York University Law School summer research assistants: Sean Boyle, Maria (Nam Hee) Kim, Sarah Leonard, Katherine McFarlane, Nicholas Miller, Elianne Neuman Schiff, and Eugene Woo. Copyright 2018, by Arthur R. Miller. 57 58 CARDOZO LAW REVIEW [Vol. 40:57 3. Areas of Potential Useful Inquiry ...................................................108 a. Aggregate Litigation .............................................................108 b. Bellwether Trials ...................................................................110 c. Magistrate Judges ..................................................................111 D. The “Nuclear” Option ...................................................................................113 CONCLUSION......................................................................................................................116 INTRODUCTION It is now more than sixty-three years since I was introduced to the wonderful world of civil procedure by my mentor, friend, and colleague, Professor (later Justice) Benjamin Kaplan of the Harvard Law School.1 Ever since then, I have been involved with the subject and matters related to it in various capacities. Throughout the years, I have always respected and admired judges and the yeoman efforts they undertake to make the courts function. I always will remember a talk many, many years ago by a senior and noted procedure academic who referred to judges as a thin protective line that separates civilization from the jungle. Judge Victor Marrero’s illuminating 2016 Article,2 along with his follow-up piece in this special issue of the Cardozo Law Review,3 reaffirms that image of the bench for me. He is in an ideal position to provide commentary and perspective on the contemporary federal litigation landscape, having served as a district judge for almost two decades. Sitting in one of our country’s largest and most active districts, Judge Marrero has experienced the full gamut of civil cases. For those of us on the outside looking in, including practicing lawyers and (especially) cloistered academics, the articles are a bit like “inside baseball.” He has provided a unique panorama rarely seen in the literature: a portrayal of lawyer behavior and its relation to the costs and delays of federal civil litigation by someone qualified to speak about it. What has come to be called the so-called cost-and-delay narrative has usually been the province of competing interest groups; Judge Marrero allows us to look through a lens held by a dispassionate and distinguished commentator. He is to be commended for giving us a fresh viewpoint and providing the impetus for the interesting commentaries that accompany this one. The breadth of these contributions illustrates the far-reaching importance and implications of the subject. 1 My debt to Ben is expressed in Arthur R. Miller, In Memoriam: Benjamin Kaplan, 124 HARV. L. REV. 1354, 1354–57 (2011). 2 Victor Marrero, The Cost of Rules, the Rule of Costs, 37 CARDOZO L. REV. 1599 (2016). 3 See Victor Marrero, Mission to Dismiss: A Dismissal of Rule 12(b)(6) and the Retirement of Twombly/Iqbal, 40 CARDOZO L. REV. 1 (2018). 2018] WIDENING THE LENS 59 No one can deny that many aspects of litigation today are expensive and time-consuming or that lawyers are at least partially to blame for that; some lawyers have never met a motion they don’t like to make, while others insist on leaving no stone unturned in discovery. Both behaviors are often marginally useful or useless or toe the line of frivolity. This hyperactivity increases costs and delays in the resolution of cases, thereby squandering judicial and client resources in a manner that Judge Marrero rightly laments. He would like to curtail what he views as practices that are too trigger-happy, exemplified by many unnecessary motions and unproductive discovery that result in waste and inefficiency for everyone.4 Lawyers are the focal point of the Judge’s Articles. But lawyers are not the only players on the litigation field, and I believe the dialogue should go beyond their behavior. To have a clearer picture of the cost- and-delay narrative, a wide-angle perspective rather than a telephoto view is necessary. What follows is an attempt to chronicle some of the legislative, judicial, and rulemaking procedural developments of the past half-century, as well as the influences of our complicated federalism. These are the tools that practicing lawyers use; I believe these developments are, at least in part, the by-products of the narrative and have contributed to the problem of unnecessary cost and delay. I caution the reader that what I have written is impressionistic at points and personal (with a few asides tucked into parentheses). I. COST AND DELAY: PHENOMENON OR PHANTOM? Judge Marrero paints a rather unflattering picture of the practicing bar’s behavior, describing an individualistic climate that has left unfulfilled the “full promise of the Federal Rules [of Civil Procedure] as it relates to the efficiency and economy of justice.”5 At its core, the Judge’s account is about disparate resources, incentives, and motivations. To stay afloat in an “economic arms race,” he believes some law firms are pursuing their own bottom lines at the expense of their clients’ interests.6 Judges, in his view, apparently are left to clean up the mess, deploying limited systemic resources to resolve auxiliary disputes that are not worth the time devoted to them.7 Behind Judge Marrero’s “functional approach”8 is a problem some think is insurmountable: litigation costs too much and takes too long. 4 Marrero, Cost of Rules, supra note 2, at 1639–40; see, e.g., Marrero, Mission to Dismiss, supra note 3, at 3. 5 Marrero, Cost of Rules, supra note 2, at 1602. 6 Id. at 1619. 7 Id. at 1642. 8 Id. at 1635. 60 CARDOZO LAW REVIEW [Vol. 40:57 The pattern and history of judicial opinions, legislation, and rule changes in the last few decades reflect the view, at least among those who dominate these processes, that litigation suffers from these defects. The summary judgment trilogy of 1986,9 the enactment of the Private Securities Litigation Reform Act of 1995,10 the heightened pleading standard established in 2007 and extended in 2009,11 together with successive amendments to the Federal Rules cabining discovery, most recently in 2015,12 have been motivated in part by the narrative—a concern with efficiency—and promote early case disposition. Each of these and other changes seem to leave, in their wake, additional demands for litigation containment.13 Almost like clockwork, once a decade, a conference is convened to tackle some aspect of litigation cost- and-delay. That costs are rising seems undeniable. For example, outside legal fees for Fortune 200 companies nearly doubled from 2000 to 2008.14 Opinion surveys of practitioners demonstrate a widely held view that litigation is too expensive.15 As for delay, the median time from filing to trial in federal civil cases that are not otherwise disposed of has
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