class actions, disabled rights, copyright, attorneys general, online speech, law schools, obesity, New York, mortgages, legal blogs, safety, CPSC, pharmaceuticals, patent trolls, ADA filing mills, international human rights, humor, hate speech, illegal drugs, immigration law, cellphones, international law, real estate, bar associations, Environmental Protection Agency, First Amendment, insurance fraud, slip and fall, smoking bans, emergency medicine, regulation and its reform, dramshop statutes, hotels, web accessibility, United Nations, Alien Tort Claims Act, lobbyists, pools, school discipline, Voting Rights Act, legal services programs

By Walter Olson, 08-19-2005

It's natural for liability discussions to focus on the substance of the law: the rules that determine who is liable to whom, based on what conduct, for what measure of damages. Yet as practicing lawyers know well, case outcomes often depend at least as much on the vagaries of civil procedure as on legal substance. When procedures invite abuse, even the wisest substantive law may offer no surety against mischief.

During the latter part of the Twentieth Century, American law massively expanded the substantive grounds for suit-filing in product liability, employment law and many other areas. But the revolution in the law did not stop there. Longstanding rules of civil procedure were revamped with the aim of encouraging suit-filing. Rules for organizing class actions were made more lenient, the availability of state court forums was expanded, more scope was afforded for demanding opponents' documents in pretrial discovery, and so forth. Most of these changes were intended to make it easier and more rewarding to sue, at the expense, often, of making it harder and more costly to respond to a suit.

Procedural reform will necessarily play a role—maybe even a central role—if the problems of our liability system are to be fixed. Among areas that have engaged reformers' attention:

  • Early disposition of weak or unsupported cases. In a famous set of cases known as the "trilogy" (see Matsushita, 475 U.S. 574, Anderson, 477 U.S. 242, and Celotex, 477 U.S. 317), the U.S. Supreme Court made it easier for federal judges to dismiss cases at the summary judgment stage, thus sparing litigants the high costs of trial preparation. Many state court systems, by contrast, still make it difficult to get weak cases dismissed at this stage.
  • Early issue-focusing/settlement incentives. The law formerly required in many cases (and still does require in the case of certain actions such as fraud) that allegations be pleaded not vaguely and generally but "with particularity", which discourages some speculative litigation and serves to focus issues at an early stage. Provisions to this effect in the Private Securities Litigation Reform Act of 1995 ( PSLRA) are credited with helping improve the overall quality of securities litigation. Some related reforms include tightening amendment of pleadings (so as to restrict litigants from alleging one cause of action to get into court and then attempting to prove an entirely different contention); curbing of pleadings that are scandalous/defamatory or which demand meaninglessly high sums in damages ("ad damnum" clauses); and "early-offer" schemes aimed at mandating (or providing incentives for) rapid exchange of information between parties and settlement of claims.
  • Loser-pays. Most of the world outside the United States applies some version of a "costs follow the event" principle. In this country, a limited application of the principle is found in federal Rule 68, which provides for some levying of costs when a litigant turns down a settlement and then does less well at trial; and federal Rule 11, which assigns sanctions for wrongful litigation, motions, etc., and which formerly included as a penalty having to pay the costs of response. For more information, see that section.
  • Class action procedures (on which see that section).
  • Restriction of forum selection. Plaintiff's lawyers derive enormous power from the wide leeway they often enjoy to select one county and state rather than another for filing an action, and to steer cases to either federal or state court depending on which is more advantageous. Jurisdictional reforms should seek to remove gamesmanship by identifying the one appropriate court for an action.
  • Improvements to jury selection. Trials which lead to "bizarre" outcomes, and in which improper sympathy and prejudice run rampant, are often associated with inadequate court management of the voir dire process by which jurors are selected from a venire, or pool of potential jurors. In some cases, courts permit lawyers to use voir dire to plant assumptions and factoids among potential jurors, or even extract "promises" to vote a certain way. Lawyers' use of both peremptory and "for-cause" challenges are often aimed at the removal of skeptical/analytical jurors, and can result in the empanelment of juries that are far from representative of a truly random cross-section of the citizenry.
  • Improvements to (and more consistent enforcement of) evidentiary rules. The rules of evidence, a subject typically bewildering or incomprehensible to nonlawyers, often make a crucial difference in trial outcomes when they fail to exclude lawyers' use of unproved, inflammatory, irrelevant or prejudicial material in their remarks and questions. A variety of individualized evidence rules (can a jury be told that a defendant has insurance? That a plaintiff has it? That an injured passenger was not wearing a seat belt?) can also prove crucial in trial outcomes. On the enormously important subject of expert and scientific evidence, see that section.
  • Appeals procedures. Some states maintain rules requiring the posting by losing defendants of appeals bonds so high as to effectively negate the practical right to appeal an exorbitantly high, "bet-the-company" verdict. In addition, much analysis has been devoted to the question of under what circumstances interlocutory appeals (appeals of rulings made within a case, before final judgment has been entered) might reduce the costs and uncertainties of litigation.

All this is by way of scratching the surface. Few areas of modern procedure cry out for reconsideration as loudly as discovery practice, the rules of which often encourage staggeringly expensive document production on matters at best tangentially related to the issues in a case. Another important field for experimentation with reform is the use of specialized courts to handle types of case considered to benefit from distinctive expertise, such as complex business disputes, medical malpractice claims, or cases hinging on cutting-edge scientific questions.




Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.