The Committee of Civil Procedure has proposed major revisions in the discovery rules. One of the sources for the revisions -- which aim at minimizing discovery -- is the belief that pretrial processes, in particular discovery, are too expensive, that the values of speedy and inexpensive justice have been ignored. The Committee relies, of course, on anecdotal evidence of its members. The Committee says that this anecdotal information has been confirmed by empirical studies (beyond anecdote). Would that it were so. What the Committee looks to are studies done by the ABA and by the American College of Trial Lawyers -- big litigation organizations with substantial resources. So, one might think, there is good evidence that discovery is unduly expensive and interfering with the the timely resolution of disputes. But none of the studies cited by the Committee really offer support for these ideas, or the revisions proposed by the Committee. Both of the studies look at opinions of various groups about discovery and other pretrial processes. There is evidence that lots of lawyers think that discovery is comparatively expensive. I don't dispute that the studies have accurately captured opinions. But believing it is so does not make it so in this instance. What is needed is information about actual costs of litigation -- how much does it cost to get a small case to trial, are there any natural breaking points correlating value of damages to discovery costs, how much is spent on expert discovery and do costs correlate with nature of the case, etc. In other words, studies of actual costs, not studies of what people think. It is not a reliable way out to suggest that because the lawyers involved in litigation believe that discovery is too expensive that it in fact is too expensive. What is the level of cooperation among counsel in planning discovery? Because most think there is not enough cooperation does not mean that there is too little.
There are also private sources which could be mined for some relevant information -- insurance companies and accounting firms have very good data sets on litigation costs. Someone could look at those to get some useful general information about discovery costs. But neither the Utah Bar nor anyone else has looked to generate public information about costs, let alone costs relative to size of claims. In a way, it is remarkable that such dramatic revisions would be built on such a weak foundation. In the end, it is just ipse dixit.
Comments