The American College of Trial Lawyers — which strangely consists of about three-quarters defense lawyers — recently published an Interim Report.  The subject matter?  A survey of ACTL Fellows on the dysfunction vel non of the civil system of justice.  The report identified four "major themes" that emerged from the survey:

1. Although the civil justice system is not broken, it is in serious need of repair.  The survey shows that the system is not working; it takes too long and costs too much.  Deserving cases are not brought because the cost of pursuing them fails a rational cost-benefit test, while meritless cases, especially smaller cases, are being settled rather than being tried because it costs too much to litigate them.
2. The discovery system is, in fact, broken.  Discovery costs far too much and has become an end in itself.  As one respondent noted:  "The discovery rules in particular are impractical in that they promote full discovery as a value above almost everything else."  Electronic discovery, in particular, clearly needs a serious overhaul.  It is described time and time again as a "morass."  Concerning electronic discovery, one respondent stated, "The new rules are a nightmare.  The bigger the case, the more abuse and the bigger the nightmare."
3. Judges should take more active control of litigation from the beginning.  Where abuses occur, judges are perceived to be less than effective in enforcing the rules.  According to one respondent, "Judges need to actively manage each case from the outset to contain costs; nothing else will work."
4. Local Rules are routinely described as "traps for the unwary" and many think they should either be abolished entirely or made uniform.

Blawgletter generally concurs.  But we note our sense that much of the trouble results from two causes:  Lack of lawyerly restraint, on both sides of the v., in burdening courts and parties with costly tactics that don’t advance a decision on the merits and a concurrent (and probably reactive) judicial insistence on perfection. 

How many times have you seen plaintiffs ask for the sun, the moon, and the stars in discovery and defendants bury plaintiffs in a blizzard of motions for protection and then drop a mountain of (largely irrelevant) documents?  Does any defendant anymore decline to file a Twombly motion to dismiss, a Celotex motion for summary judgment, and a Daubert challenge to expert evidence?  Do judges try very many cases these days?  Do appellate judges sustain most jury verdicts they disagree with?  And let’s not even talk about the frequency of tactical and abusive motions for sanctions.

We do recommend that you have a look at the Interim Report‘s Appendix A, which highlights some of the survey results.  These include 65 percent who think the Federal Rules of Civil Procedure do NOT promote the just, inexpensive, and expeditious determination of disputes; 81 percent who think litigation costs too much; 43 percent who believe that local rules promote inconsistency and unpredictability; a 64 percent preference for "fact" pleading; 77 percent who think courts don’t understand the difficulties in providing e-discovery; and 67 percent who believe that arbitration shortens the time to resolution.

The best lack all all conviction, and the worst are full of passionate intensity.