Lawyers For Civil Justice; Standing For Fairness And Meaningful Reform In U.S. Civil Litigation

Wednesday, May 22, 2013 - 16:43

The Editor interviews Marc E. Williams, President, Lawyers for Civil Justice, and a Partner at Nelson Mullins Riley & Scarborough LLP.

Editor: Congratulations on being elected president of Lawyers for Civil Justice (LCJ). To start our discussion, can you please recap the major initiatives LCJ is undertaking?

Williams: LCJ has long advocated rule reforms that would make the civil justice system fairer and more efficient. We are very aware of the economic burdens that litigation imposes on litigants in this country. We simply have to be proactive in pressing for reforms that add a dose of economic reality to the litigation process. To that end, LCJ is currently undertaking an initiative that promotes federal and state rule reforms that would provide litigants relief from the skyrocketing costs of discovery and much-needed rule reform in relation to class action lawsuits.

In support of meaningful discovery reform, LCJ recently submitted two formal comments to the U.S. Judicial Conference – “A Meaningful Step towards Addressing Preservation, Discovery and Costs” and “The Un-American Rule.” These comments, which are publicly available at www.lfcj.com, detail the problems surrounding the rise of electronic information, the ways in which these problems are burdening the civil justice system and several proposed solutions that could lessen the costs and burdens of litigation.

LCJ has recently formed our Class Actions Committee dedicated to promoting reforms of the abuses in class action litigation. Specifically, our committee has honed in on three areas worthy of review, which I will discuss below. 

LCJ is of course also very concerned with broader civil justice reform issues pertaining to the ways in which cases are litigated at the federal and state level and how these issues can have such a dramatic effect on our members. In the coming year, we will want to continue our primary focus on discovery and class action reform both at the state and federal levels. But we may have opportunities to expand our agenda since our members are always challenging us to address new issues, such as the expanding powers of attorneys general and the expanding criminalization of corporate behavior.

Editor: We understand that amending the FRCP is a complicated process. Tell us about this process and the particular challenges that LCJ faces.

Williams: Amending the Federal Rules is a lengthy, complicated process, and much of the challenge for LCJ is in ensuring that the voice of the business and defense communities is heard throughout the process and given due consideration. The current procedures for amending the rules were set forth in the 1950s when the Judicial Conference of the United States, which is the national policy-making body for the federal courts, created the Committee on Rules of Practice and Procedure and five advisory rule committees – each with a respective subfield of the Federal Rules. The rulemaking process is a public one, and LCJ wants to take full advantage of opportunities to engage its members in each of the critical steps in this process. For example, at our May 2013 Membership Meeting, LCJ was fortunate enough to have as a guest speaker the current chair of the Committee on Rules of Practice and Procedure - the Honorable Jeffrey S. Sutton of the 6th U.S. Circuit Court of Appeals. Judge Sutton provided us with a detailed overview of how procedural rules are developed and the manner in which the committees prioritize reform items.

Generally, the Civil Rules Advisory Committee provides recommendations to the Standing Committee on Rules of Practice and Procedure, which in turn reports to the Judicial Conference of the United States. If the Judicial Conference approves the Standing Committee’s report and recommendations, it then forwards the report to the U.S Supreme Court, which will in turn approve, modify or disapprove the report’s recommendations. Those recommendations that are adopted are then transmitted by the Supreme Court to Congress and, unless Congress acts adversely within 90 days, the rule automatically becomes law.

At certain points throughout this process, members of the public are encouraged to comment on the proposed reforms, and this is when it becomes important for LCJ to provide input on behalf of the business and defense communities. We are very grateful to Judge Sutton and other judges who encourage the involvement of practitioners in this process, and we plan to do our part to ensure that our members’ voices are heard.  

Editor: What do you see as your role in furthering LCJ’s agenda?

Williams: In many ways, the role of the LCJ president is to provide a mechanism for developing a consensus on key civil justice reform issues and to help shape LCJ’s agenda accordingly. One such mechanism is LCJ’s biannual meeting, which serves as an excellent way to engage our members as well as policymakers, business leaders and civil leaders in an open dialogue on important issues.

LCJ’s recent Membership Meeting in Washington, DC was a prime example in that it was current and informative, and it included a cast of guest speakers from among the business and legal communities. Special guests included Congressman Trent Franks (R-AZ), chair of the House Judiciary Subcommittee on the Constitution and Civil Justice; Hon. Jeffrey S. Sutton (6th Circuit), chair of the Standing Committee on Rules of Practice and Procedure; Hon. Dee Benson (Utah District), district court representative on the Judicial Conference of the United States; Hon. Alan Wilson, South Carolina’s attorney general; and Hon. Luther Strange, Alabama’s attorney general. I was pleased to see that so many of the nation’s thought leaders and rule reform experts were able to join us.

As LCJ continues its reform efforts at the state and federal level, it will also be my role to continue to strengthen LCJ’s membership base. I am pleased to say that, since the beginning of 2012, we have announced the membership of seven new law firms as well as five new corporations, including American Family Mutual Insurance Company, Bayer Corporation, Altria Client Services Inc., Honeywell International Inc. and BP America Inc. Their membership will help support the progress of LCJ initiatives on many fronts, and I look forward to working with them.

Editor: Another fascinating discussion from the LCJ meeting centered on the broad direction of civil litigation going forward. What are your thoughts here?

Williams: The rise of the age of digital information has certainly had a profound effect on litigation. Companies are generating more data today than in previous decades combined. With that data comes a set of complex problems regarding preservation and production.  Skyrocketing increases in the costs, burdens and complexity of modern litigation are forcing litigants to settle cases that might otherwise be tried by jury. As we wrestle with new technological developments, it becomes more difficult to predict how these developments will impact the future of litigation. Unless we adjust the discovery and pleading rules to meet the realities of today's litigation, discovery costs will continue to hinder the effective administration of justice and will ultimately lessen the ability of American companies to compete in a global marketplace.

Editor: LCJ’s May membership meeting featured a healthy discussion of class actions.  Tell us broadly about the points of view expressed in this discussion and the process of developing a unified plan of advocacy.

Williams: As a consensus organization, it is very important for LCJ to engage its members in reaching a common advocacy position, and LCJ certainly has a long history of supporting class action reform at the federal level. Historically, for example, LCJ was very instrumental in supporting CAFA, the Class Action Fairness Act, which was signed by President George W. Bush. And although CAFA was very effective in reforming how class actions are prosecuted in the federal courts, our members have expressed growing concern that class actions are subject to abuses that undermine the public policies that brought collective actions to the forefront of mass litigation.

So we felt it appropriate to reexamine the class action mechanism to see how it could be improved. But we are still early enough in this review process to know that, while certain areas of class actions deserve further consideration, we don’t yet have all of the information we need to put forth a concrete proposal. We think as this process moves forward that our members will begin to coalesce around certain reform initiatives. Areas seemingly ripe for further consideration are (1) the process of interlocutory appeal of class certification decisions; (2) the abuses of cy pres in settlement classes; and (3) the ability of class litigants and potential litigants to have greater say in how and by whom they are represented. We believe that as discussion of these and other class action issues moves forward we will see more coalescing around specific proposals.

Editor: For the past 25 years, LCJ has advocated for meaningful civil justice reform. How have you seen these positions change to accommodate the current litigation environment?

Williams: LCJ has always stood for principles of fairness, especially as it relates to issues of privacy, costs and proportionality in litigation. Although our fundamental principles have not changed, there is now greater attention given to protecting litigants from unwarranted costs and burdens emanating from the discovery process because these costs have skyrocketed due to the changes in technology. We also see that as markets become more global, U.S. businesses must be positioned to compete on a worldwide basis with our friends overseas. LCJ, for its part, is uniquely situated to bring to this discussion some of the nation’s brightest attorneys in order to shape that debate and the policies that follow it. As the newly elected LCJ president, I am looking forward to ensuring that we are a leader in this process.