Sunday, January 16, 2011

Articles on E-Discovery Sanctions, Federal District Courts, and More

A recent study finds increasing sanctions of lawyers and their clients for e-discovery violations. Dan H. Willoughby, Jr., Rose Hunter Jones & Gregory R. Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789 (2010). You can find a brief discussion of this 76-page article here: Study: Lawyer Sanctions Over Electronic Discovery on the Rise - Law Blog - WSJ, Jan. 13, 2011.

That article caught the eye of the Wall Street Journal's blogger, but it's just one in a special symposium issue: the 2010 Civil Litigation Review Conference. Here are the rest of the articles in that issue:

John G. Koeltl, Introduction, Progress in the Spirit of Rule 1 ... 537

John H. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform ... 547

Paul D. Carrington, Politics and Civil Procedure Rulemaking: Reflections on Experience ... 597

Steven S. Gensler, Judicial Case Management: Caught in the Crossfire ... 669

Patrick E. Higginbotham,The Present Plight of the United States District Courts ... 745

Emery G. Lee III & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation ... 765

For even more scholarship on civil litigation, see the shorter e-only articles on Duke Law Journal's Workshop site.

Patrick E. Higginbotham has been a federal judge for 35 years (N.D. Tex. 1975-82, 5th Cir. 1982-present), so I was curious about what he thinks the plight of federal district courts is. He observes that conducting trials has become a very small part of the work of federal trial court judges -- the average district judge has almost 300 days a year with no trials. While some see this as a good thing, Judge Higginbotham says it is "a manifestation of the illness" he discusses.

He argues "that federal trial courts are now more like administrative agencies than trial courts in their present efforts to discharge their duty to decide cases or controversies, and that we are witnessing the death of an institution whose structure is as old as the Republic."

The changes Judge Higginbotham examines are the rise of arbitration and other ADR, the decline of attorneys with trial experience, the loss of the 12-person jury, and "the drift of the federal courts to the civil law model and their capture by the administrative model." He urges a return to the trial model.

Thanks: Aaron McElhose

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