Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform, 60 Duke L.J. 889, 892 (2009) (noting that in litigation entailing discovery, that expense comprises from about one half of total costs to as much as 90% in the category of most expensive cases) John H. Moss, Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in a Digital Age, 58 Duke L.J. Given the outsize role discovery plays in modern litigation, 4 See, e.g., Scott A. Among the explanations advanced, the huge burdens attributable to discovery procedures usually top the catalog of the law profession’s grievances. One central aspect of this debate raises questions about what accounts for the problem. In consequence, if the issues are to be addressed seriously and meaningfully, new ways of thinking about them, coupled with more far-reaching remedial methods, may be called for. Courts, finding that, in a sample of ten district courts, the implementation and effect of the Civil Justice Reform Act “had little effect on time to disposition, litigation costs, and attorneys’ satisfaction and views of the fairness of case management”). Judicial Conference and the Administrative Office of U.S. at 18 (reporting on the results of a pilot project conducted by the U.S. As a consequence, proponents of reform argue, some litigants are denied access to justice and many litigants incur inappropriate burdens when they turn to the courts for assistance in resolving disputes.”) id. 17, 17 (1997) (“The Civil Justice Reform Act of 1990 is rooted in more than a decade of concern that cases in federal courts take too long and cost litigants too much. Kakalik et al., Just, Speedy, and Inexpensive? An Evaluation of Judicial Case Management Under the Civil Justice Reform Act, 49 Ala. The difficulties thus remain alive today. None of these endeavors has made a marked difference on the depth or scope of the problem. Countless attempts to address the central issues by amendment of the Federal Rules of Civil Procedure (the Federal Rules or Rule), by congressional statute, and by judicial doctrine have failed. Years of recurring deliberations, such as those again recounted here, all attest to the prevalence of concerns and the shortcomings of measures to relieve them. It is also pervasive and ingrained and in fact has defied the intervention of a multitude of prior reform efforts spanning generations. The views expressed by the various contributors highlight another vital point: the underlying problem is longstanding. Such concerns impinge upon fundamental interests of the legal profession, the practice of law, the courts, and the larger society. These circumstances bring worrisome effects to bear on a broad range of essential values, not the least of which is placing constraints on access to justice for many people because the price of going to court represented by a lawyer is unaffordable. The commotion encompasses several interrelated issues: the prohibitive expense, undue delays, and abusive practices associated with much of modern litigation. 2 See generally Victor Marrero, The Cost of Rules, the Rule of Costs, 37 Cardozo L. This controversy continues to roil the legal community. 269.-Eds.-judges, scholars, and practitioners-reaffirm a point that rings loud and clear: the costs and inefficiencies of civil litigation are high and rising in troubling ways. The participants in this Cardozo Law Review special issue 1 A transcript of the panel discussion and Judge Marrero’s original article, both of which inspired this special issue, are published in the Supplement, infra p.
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