Brookings Task Force Urges Continued Attention to Civil Justice Reform

“Reducing costs and delay in America’s civil justice system remain just as important goals today as they were in 1990 when Congress enacted the Civil Justice Reform Act.”

That conclusion comes from a reexamination of the landmark legislation by many members of the original Brookings Task Force of Civil Justice Reform, authors of Justice for All, the report that served as the basis for the law.

In 1989, these legal practitioners reached unprecedented consensus on ways to reduce costs and delay and thus improve access by the middle class and others to the court system. The Civil Justice Reform Act (CJRA) responded to the Task Force’s recommendations by requiring each federal district to develop a plan for civil case management, while requiring ten “pilot” district courts actually to adopt plans that contained certain case management principles.

These principles included: (1) differential case management (different rules for cases of differing complexity); (2) early judicial management; (3) monitoring and control of complex cases; (4) encouragement of cost-effective discovery through voluntary exchanges of information and cooperative discovery devices; (5) good-faith efforts to resolve discovery disputes before filing motions; and (6) referral of appropriate cases to alternative dispute resolution programs.

The Brookings Task Force consisted of 35 leading attorneys from both the plaintiffs’ and defense bar, civil and women’s rights lawyers, attorneys representing consumer and environmental organizations, the corporate community and insurers, former judges and law professors.

The CJRA also contained a novel provision for federal legislation—a requirement that its results be evaluated by an independent research organization. This requirement has now been fulfilled with the publication of An Evaluation of Judicial Case Management Under the Civil Justice Reform Act by the Institute for Civil Justice at the RAND Corporation. RAND researchers were also intimately familiar with the Act because they served as technical consultants to the original Brookings Task Force whose recommendations led to the enactment of the CJRA.

A principal conclusion of the RAND report is that the pilot program—as implemented by the ten district courts—had no statistically significant effect on time to disposition, litigation costs, satisfaction of the participants, or their views of the fairness of the process. The RAND researchers also found that the judicial referral of the parties to Alternative Dispute Resolution programs had no major affect on costs and delay.

“Although these findings would appear to suggest that the CJRA was not successful in achieving its objectives, other findings of the RAND report strongly reaffirm several working assumptions that motivated the Act,” the Brookings group observed. In particular:

The Act’s requirement that judicial districts publish the numbers of “old” cases not yet resolved by each judge—those still in the pipeline three years after filing—significantly reduced the numbers of those cases in the system. As a result, while the CJRA sunsets in 1997, the Brookings group urges Congress to make permanent the “three-year old” and other disclosure requirements.

One of the reasons the pilot program did not appear to “work” was that most pilot districts did not implement major changes in case management principles as a result of the Act. At the same time, however, those district court judges that either prior to or subsequent to the Act had implemented a package of early management techniques—including the early setting of a trial date and shorter time allowed for discovery—reduced time to disposition, on average, by 30 percent, with no change in litigation costs, satisfaction or perceived fairness. This finding strongly reaffirms the view of the original Brookings Task Force that, where it is implemented, active judicial management can work to alleviate congestion in the civil justice system.

The RAND findings strongly suggest that the discovery process is a major cause of delay and cost in the civil justice system. Accordingly, the Brookings group calls on the various bodies of the federal judiciary to encourage individual judges to adopt the successful case management techniques already in use by some judges and in some districts. In particular, the Brookings group applauds the efforts by the Advisory Committee of the Federal Rules of Civil Procedure of the U.S. Judicial Conference, which is examining current discovery rules to determine if modifications could lower costs and delay throughout the federal judicial system. The Brookings group looks forward to the Committee’s recommendations for improvements in the civil court system.

The original Task Force report was entitled Justice for All: Reducing Costs and Delay in Civil Litigation, published by Brookings in 1989.

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Signatories to the Press Release
* Debra T. Ballen (American Insurance Association)
* Robert S. Banks (Attorney, Alpharetta, Georgia)
* Gideon Cashman (Pryor, Cashman, Sherman & Flynn; New York, New York)
+ Jeffrey J. Connaugton (Arnold & Porter)
* Alfred W. Cortese, Jr. (Pepper, Hamilton & Scheetz; Washington, D.C.)
* Susan Getzendanner (Skadden, Arps, Slate, Meagher & Flom; Chicago, Illinois and former federal district judge)
* Mark H. Gitenstein (Mayer, Brown & Platt; Washington, D.C.)
* Marcia D. Greenberger (National Women’s Law Center; Washington, D.C.)
* Shirley Hufstedler (Morrison & Foerster; former federal appellate court judge)
* Kenneth R. Kay (President, Infotech Strategies)
* Norman Krivosha (Ameritas Life Insurance Corporation; former Chief Justice, Nebraska Supreme Court)
* Robert E. Litan (The Brookings Institution)
* Frank H. McFadden (Capell, Howard, Knabe & Cobbs, Montgomery, Alabama and former federal district judge)
* Francis E. McGovern (Duke University Law School)
* Edward R. Muller (President and CEO, Edison Mission Energy)
* Robert M. Osgood (Sullivan & Cromwell)
* Jeffrey J. Peck (Andersen Worldwide)
* Judyth Pendell (Consultant; Bloomfield, Connecticut)
* John A. Pendergrass (Environmental Law Institute)
* George Priest (Yale Law School)
* Charles B. Renfrew (LeBoeuf, Lamb, Greene & MacRae, San Francisco, California, and former federal district judge)
* William Wagner (Wagner, Vaughan & McLaughlin, Tampa, Florida)

* Member of the original Brookings Task Force
+ Adviser to the original Brookings Task Force