The adoption of the Federal Rules of Civil Procedure was intended to create a swift and efficient justice system by replacing archaic formulaic pleadings with notice pleadings so that meritorious claims were heard by the courts and not dismissed on technicalities. Ignoring these noble goals, modern interpretation of Rule 16 and the federal pre-trial order is a reversion to old practices. Litigants go through a painstaking and expensive pre-trial process preparing detailed summaries of the facts, law, and evidentiary issues in the case. It is not uncommon for pre-trial orders to consist of thousands of pages to avoid waiver of any fact or issue. Rather than promote the swift and fair administration of justice, the pre-trial process imposes obstacles to trial. For many parties, the cost alone is an insurmountable hurdle. The federal pre-trial order has resurrected the formulaic practices that the Federal Rules were designed to avoid. Once again, cases are decided on legal technicalities rather than on their merits. Reform is needed. This article examines the forgotten historical purpose of the Federal Rules and advocates the need to revise current practice to promote fairness and reduce the waste of time and expense in litigation.
Federal Rules Of Civil Procedure
The Federal Rules of Civil Procedure replaced an act of Congress that directed district courts to follow the local procedures of the individual state in which they were located.1 The Rules replaced the then prevailing disunity and confusion that existed from district to district with a unified system of pleading.2 Congress hoped the Rules would promote speedier disposition of issues and reduce litigation expenses.3 The Rules were intended to simplify procedure and reduce the uncertainty that a meritorious claim would be dismissed on a technicality.4 Rulemakers wanted to "escape the rigidities and technicalities that had attended the development of procedural codes in so many states."5 Speaking of the problem in 1914, Senator Elihu Root noted that certain lawyers built their business and reputation "upon their ability to make use of statutory technicalities whereby delays are practically endless. . . . their sole purpose was to put off the final adjudication of the cause as long as possible."6
To create a system of rules reflecting judges' daily experiences, in 1934 Congress passed the Rules Enabling Act directing the Supreme Court to propound a uniform set of rules on civil procedure. The Federal Rules of Civil Procedure were implemented in 1938.
Rule 16 And Pre-Trial Procedure
As originally drafted, Rule 16 did not compel federal courts to hold pre-trial conferences.7 Instead, federal courts had wide discretion in whether, when and how to hold pre-trial conferences.6 Pre-trial conferences sought to simplify issues for trial, amend pleadings when necessary, obtain possible admissions of fact, limit expert testimony, and possibly refer issues to a master which may aid in the disposition of the action.9 In September 1944, the Judicial Conference of the United States recommended that pre-trial conferences be held one to three weeks before the actual trial.10
Following each pre-trial conference, a pre-trial order would be entered "which recites the action taken at the conference."11 The final pre-trial order would embody the parties' admissions, stipulations and court rulings at the conference.12 Pre-trial orders also identified issues to be tried, enumerated the exhibits to be admitted without proof, and identified experts.13 The Judicial Conference recommended that the pre-trial order be drawn up "while the parties are present, setting forth what has been agreed to or accomplished at the hearing."14 Once entered, the pre-trial order controlled the subsequent course of the case. While interim pre-trial orders could be amended, the final pre-trial order could only be amended to prevent "manifest injustice."
1983 And 1993 Amendments To Rule 16
Noticeably absent from the original Rule 16 is any reference to the court's role in settlement. Judge Charles Clark, a drafter of the original Rules, wrote that this omission was "no mere chance."15 Instead, the drafters intentionally confined the judge's role to trial preparation. The pre-trial process "pared of unnecessary issues and time-consuming technical objections" would guide the case towards trial and, therefore, "often lead to settlement as a necessary by-product."16 While settlement might result from the pre-trial process, it was not a primary purpose of the process.17 The drafters knew that "[c]ases are settled under the pressures of trial dates and the focused discovery and meritorious motions of vigorous adversaries."18
The 1983 and 1993 amendments specifically revised Rule 16 to "place significant emphasis on settlement as a goal."19 Specifically, pre-trial conferences could be held for the purpose of "facilitating the settlement of the case."20 The drafters of these amendments hoped to encourage settlement and reduce court congestion; however, no empirical studies reveal whether these goals were achieved.21 In fact, a 1977 study actually showed " a rough inverse relationship between settlement involvement and terminations ."22 The results of this study are "striking, given the widespread notion that a strong judicial role in settlement is necessary - even if possibly risky or occasionally questionable - to handle a large and growing caseload."23
Modern Pre-Trial Practice And Its Problems
Today, Rule 16 is less about trial preparation than docket management. Trial judges emphasize settlement possibilities at pre-trial conferences. While a "good settlement saves resources for the parties and for society a settlement involving even a whiff of coercion threatens fundamental principles of the traditional justice system."24 Judges have begun to see themselves "less as neutral adjudicators and more as managers of a costly and complicated process."25
Professor Judith Resnik of Yale Law School warned of the potential abuses when trial judges play too large a role in the settlement process.26 As "managerial judges," they "have begun to perceive themselves as being in the business of settlement as much as (sometimes more than) in the business of adjudication."27 Elongating the pre-trial procedure, these "managerial judges" impose burdensome settlement procedures and often obstruct, or even eliminate, a litigant's path to trial.28
By focusing upon case management and settlement, rather than trial preparation, the requirements of pre-trial proceedings have grown. While the Federal Rules adopted simple, concise and direct pleadings under Fed. R. Civ. P. 8(e), simplicity has been abandoned in the modern pre-trial order. In drafting the original Rule 16, the rulemakers were concerned "that routine insistence on elaborate pre-trial preparation and paperwork was not saving time, it was wasting it."29 In later years, Judge Clark expressed "apprehension that courts were reverting to the archaic bill of particulars in requiring so much detail, and that litigants were being coerced by a process that was designed to be consensual and persuasive."30
Today, courts direct parties to construct elaborate pre-trial orders in advance of conferences in contrast with past practices where the judge prepared the order during the conference. While modern practice lightens the judge's workload, the resulting pre-trial order drafted by counsel is so overdone that it is essentially useless. In addition to factual stipulations and witness identifications, pre-trial orders contain exhaustive descriptions of all disputed facts and ridiculous lists of legal issues to be considered often consisting of more than 1,000 pages. Counsel prepare these monstrosities because failure to include every fact or issue that may arise during trial may lead to waiver.31 Thus, the pre-trial order has departed from simply providing reasonable notice of stipulated facts and identified issues, and returned to intricate and elaborate pleadings requirements.
Moreover, the conferences to finalize the pre-trial order are often held months, if not years, before the actual trial often so that further settlement discussions can be held before trial. It is well-known that over 90% of cases settle.32 However, it is unknown whether this trend towards settlement is related to effective judicial involvement in settlement discussions or merely the exhaustion of time and money with no trial date in sight.
While trial judges may prefer to arrange a settlement than expend judicial resources on a trial, current focus on settlement as a primary goal is skewed. It makes no sense to try to compel parties to settle by building elaborate pre-trial barriers between the parties and those "court house steps" where settlements are most likely to occur. Instead, by clearing paths to trial and simplifying procedure, judges may find settlements more easily achieved as parties are forced to seriously evaluate their positions in the face of a looming trial date and, if settlement is not achieved, then both the court and the parties have a simple, concise and direct pre-trial order to direct a speedy and efficient trial.
1 H.R. Rep . No. 63-462, at 5 (1914).
2 S. Rep. No. 69-1174, p. 1 (1926); Robert Wyness Millar , Civil Procedure of the Trial Court in Historical Perspective 180 (Nat'l Conf. of Judicial Councils 1952).
3 S. Rep. No . 69-1174, at 2.
4 Id .
5 David L. Shapiro , The 50th Anniversary of the Federal Rules of Civil Procedure 1938-1988: II. The Underlying Assumptions of the Federal Rules of Civil Procedure: Federal Rule 16: A Look at the Theory and Practice of Rulemaking, 137 U. Pa. L. Rev. 1969, 1975 (June 1989).
6 H.R. Rep . No. 63-462, at 5 (1914).
7 Fleming James, Jr., Civil Procedure 223 (Little, Brown & Co. 1965).
8 Id .
9 Fed. R. Civ. P. 16 (1938).
10 Harry D. Nims , Pre-Trial app. at 307 (Baker, Voorhis & Co., Inc. 1950). ( Recommendations of the Judicial Conf. of the U.S. With Respect To Pre-Trial in Pre-Trial).
11 Fed. R. Civ. P. 16 (1938).
12 Fleming , supra note 7, at 227.
13 Nims , supra note 10, at 90.
14 Id. at 308.
15 Shapiro , supra note 5, at 1980.
16 Fleming , supra note 7, at 228.
17 Shapiro , supra note 15, at 1979.
18 Michael E. Tigar , Pretrial Case Mgmt. under the Amended Rules: Too Many Words for a Good Idea, 14 Rev. Litig. 137, 141 (Winter 1994).
19 Jack H. Friedenthal, et al . Civil Procedure 443, n. 12 (3d Ed. West Group 1999).
20 Fed. R. Civ. P. 16(a)(5) (1983); Fed. R. Civ. P. 16(a)(7) (1993).
21 Friedenthal , supra note 19, at 444.
22 Thomas A. Tozer , The Heileman Power: Well-Honed Tool or Blunt Instrument?, 66 Ind. L.J. 977, n. 4 (Fall 1991) (quoting S. Flanders , Case Management and Court Management in United States District Courts (Fed. Jud. Ctr. 1977)).
24 Id. at 988.
25 Shapiro , supra note 5, at 1983.
26 Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 376 [pincite] (Dec. 1982).
27 Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. Chi. L. Rev. 494, 497 (Month/Season? 1986).
28 Resnik , supra note 27, at 550.
29 Shapiro , supra note 25, at 1982.
30 Id .
31 Phoenix Canada Oil Co. Ltd. v. Texaco, Inc., 842 F.2d 1466, 1476 (3d Cir. 1988)
32 Fleming, supra note 7, at 282.
James A. Scarpone is a Partner with Robertson, Freilich, Bruno & Cohen, LLC in Newark, New Jersey and has more than 40 years of trial experience. Jennifer A. Leighton is an Associate with the firm.