The Federal Tools of Civil Procedure: The FRCP amendments are waiting to be used by litigants and judges to build a better litigation system

Thursday, August 25, 2016 - 12:21

Nine months after major changes to the Federal Rules of Civil Procedure (FRCP) took effect, the Institute for the Advancement of the American Legal System (IAALS) continues its outreach to attorneys and judges to educate them about the impact of the rules on practices and caseloads. Below, IAALS’ Rebecca Love Kourlis joins with Brittany Schultz of Ford Motor Company to discuss the impact of the rules from an in-house perspective. Their remarks have been edited for length and style.

MCC: Can you make the case for why the changes to the Federal Rules of Civil Procedure were needed in the first place?

Kourlis: The civil justice system was, and to some extent still is, plagued by inefficiencies and bloated costs, which were undermining access and public trust and confidence. A significant portion of those costs were in conjunction with discovery.

Schultz: The ever-increasing scope of discovery led to a “scorched earth, overturn every stone” approach, which created problems for efficiency, proper case management and resolution of cases.

Kourlis: The Duke 2010 Conference took on the question of how to make the system more aligned with the goals of Rule 1, namely a just, speedy and inexpensive resolution of disputes. While there was not a call for restructuring of the system, there was a call for improving the system through focused rule amendments.

MCC: What do you see as the most important aspects of the rule amendments?

Kourlis: To me, the most important aspects are cooperation and proportionality: cooperation from the perspective that the attorneys are supposed to cooperate in identifying the scope of discovery, then schedule and organize discovery under the umbrella of what is proportional and appropriate for a particular case. A third, critically important piece is the expectation that judges will manage cases more actively.

Schultz: I agree that cooperation is really at the heart of these rules. Once you cooperate, all else should fall into place, or at least come a lot closer to what is truly at issue.

MCC: Now that we’re nine months in, what aspects of the changes have had the greatest impact?

Kourlis: The greatest impact that we see to date are the conversations swirling around what proportionality means in practice and in action, how it applies in individual circumstances, and what it demands of attorneys and judges.

Schultz: I sum it up in one word: “awareness.” It’s awareness amongst the bench and the bar, in courthouses and law firms, and at in-house levels. It remains to be seen how the execution of that will unfold – it’s still unfolding.

MCC: Has anything surprised you?

Kourlis: I do have some level of surprise when I speak to lawyers who know that the rules have changed but don’t know what exactly has changed. I’m happy to know there’s an awareness of the change but disappointed to see that we’re nine months in and they still haven’t read the new rules.

Schultz: It surprises me when I’m speaking to lawyers or other groups, informally or formally, that there are some who are largely oblivious to the new rules and the impact that they’ll have. There’s been such a significant effort to educate federal judges about the rules and their impact, but clearly there are state court judges who have no idea that the federal rules have changed.

MCC: Aren’t the rules and comments lying in a toolbox until lawyers and judges pick them up and put them to use?

Kourlis: Absolutely. They are available for judges and lawyers who want to achieve the goals of proportional and appropriate litigation in a given case. Judges have the option of forcing attorneys to use them; attorneys don’t necessarily have the option of forcing judges to use them. Clearly, the intent of the rules, as elaborated upon in the comments, is that the judge and lawyers take up a case with the specific objective of using these rules to achieve better outcomes for their clients.

Again, it’s a question of whether they are incentivized or forced, and until the paradigm shift is really complete, there will be holdouts for sure. The more that litigants – including corporate litigants, such as Ford – demand that their attorneys be part of this paradigm shift, the more quickly the tools will be put to full use.

Schultz: I agree 100 percent. You have to actually use the tools to effect change. It seems to me that oftentimes the view is that discovery is somebody else’s problem. And if it is not your problem, you want somebody else to deal with it. The fact is that everybody has a responsibility to handle discovery. I call it a team sport at the end of the day, and the entire team needs to be engaged, and every team has lots of players. We need to work together and use those tools to make it work.

MCC: Is lack of understanding of the technology used in discovery one of the issues?

Kourlis: That could be an impediment. If technology is daunting for you, it’s hard to get your arms around things like ESI.

Schultz: There are a whole series of components – a lack of comfort with understanding the technology itself or the nomenclature is one. Another is that the lawyer representing the client needs to have a handle on how their client keeps records. If the lawyer does not understand the technology, he or she cannot effectively explain it to a judge, and this makes it harder to implement the new rules and achieve proportionality.

MCC: What can corporate counsel do in their own organizations to further the intent of the amendments?

Kourlis: Corporate counsel should be doing the same things that everybody else should be doing: engaging, reading, interpreting and executing on the intent of the federal rules. That includes making sure that their outside counsel are doing those things too. We should have an expectation that both outside and in-house counsel understand and embrace the rules.

Schultz: Ultimately, the changes are for the benefit for all in the civil justice system. The more that clients can create expectations with their lawyers about using the new federal rules, the more likely it is that lawyers will proceed that way. Corporate counsel are often uniquely sophisticated clients who sometimes know more about subject matters pertinent to their company than the outside counsel with whom they’re working. They have a unique opportunity to have a louder voice, ensuring that this change actually occurs.

MCC: Do you believe that training can play a role both internally and externally?

Schultz: There are many fantastic webinars, seminars and road shows that talk about these new federal rules – what they mean and what they say. Encouragement by in-house and outside lawyers to attend is critical because knowledge is power. Word of mouth is helpful, but sometimes it could just take a couple of hours to read a few of the great articles that have been written on this topic. Judge Elizabeth Laporte wrote a wonderful article about it. IAALS is putting out fantastic materials. Those are resources that all lawyers and the bench and the bar can use.

Kourlis: The Federal Judicial Center is very engaged in providing training for magistrate and district court judges on the rules, the expectations and the case flow management implications. Everybody recognizes that it is less likely that these rule changes will achieve the goals that they were intended to achieve if people are not educated about them and why they came into being. The rules are more likely to gain traction and leverage if people have an opportunity to talk about them with their colleagues and judges and to discuss how the rules can be applied.

MCC: Let’s talk a little more about what IAALS is doing to educate the community.

Kourlis: We at IAALS see ourselves as a clearinghouse for information, as well as a catalyst and a facilitator. Our website has an enormous amount of material about what’s happening around the country, at both the state and federal levels. We regularly participate in conversations that the Federal Rules Committee is having about other pilot projects and about the training that is in place for the current rule changes. We like to think of ourselves as having a significant role in bringing people together, facilitating outcomes, motivating people toward change and constantly reminding them of why these changes are so important, why it has to happen for the benefit of litigants and the benefit of the system.

IAALS also has a Business Leadership Network group with which we share information about what both sides see happening on the ground. A number of companies, including Ford, are members of that network. We view participation with this group as keeping us informed, and hopefully they view it as giving them a window into what’s happening nationally.

MCC: What has changed in the way that you work with outside counsel as a result of the new rules?

Schultz: Our expectation at Ford is that our outside counsel know and apply the rules, read and understand the articles and emerging case law about them, and most importantly, execute on the rules. That includes ensuring that appropriate resources are provided to our outside counsel, which includes sharing and exchanging ideas as this emerging case law develops and as courts implement them across the country. Ford does not want its outside counsel to be among those who are left behind, who are not leading in changing the culture. We want to be at the forefront. The key words are “expectation” and “execution.”

MCC: What do you expect from outside counsel regarding cooperation with opposing counsel?

Schultz: I can’t speak for all corporations, but for Ford – this is part of my personal experience – cooperation has always been at the heart of the role. You can be cooperative while remaining a zealous advocate. My expectations for outside counsel are for them to be cooperative with opposing counsel and abide by all civility rules. Rule 1 just underscores what I think should already exist.

MCC: One of the recommendations from IAALS’ report Change the Culture: Change the System is for attorneys to dig deeper earlier. Is this something that you value, and how are you working with outside counsel to achieve this goal?

Schultz: A good way to illustrate this is with respect to scheduling conferences. Historically – and this is not specific to Ford – early discovery conferences were almost a “check the box” kind of conference. If attorneys, whether they represent a plaintiff or corporation or any entity, dig deeper earlier and get their arms around the subject matter and what they hope to accomplish, that helps the entire case, the court and the adversary because at least you’ll know what those boundaries are and what you can and can’t agree to. That requires doing that deeper dive so you can speak more intelligently about those issues early on. You need to come prepared, to know what you don’t know, so you can have meaningful conferences with the court.

Kourlis: What Brittany is talking about is an example of true leadership, changing culture and changing paradigms. I really commend Ford for it. The rules are an antidote to Rambo-style litigation. They’re establishing a process that seeks the legitimate resolution of a dispute rather than allowing the process to become an impediment. As we’ve been saying throughout, the rules are tools to be used for a just, speedy and inexpensive resolution, not to bash each other along the way and create detours from the resolution of that dispute.

Rebecca Love Kourlis is the executive director of IAALS, served as a trial court judge in Colorado and a justice of the Colorado Supreme Court. She can be reached at rebecca.kourlis@du.edu. Brittany Schultz is in-house counsel at Ford Motor Company. She can be reached at bschul31@ford.com.