The Loss of Access to Justice: 2015 Year-End Report on the Federal Judiciary

“In 1838, John Lyde Wilson, a former governor of South Carolina, made a grim contribution to the literature of dispute resolution by publishing “The Code of Honor; or Rules for the Government of Principals and Seconds in Duelling.” That 22-page booklet, sized to fit comfortably alongside a gentleman’s matched pair of dueling pistols, specified the procedure for issuing a challenge, the duties of seconds, and the proper conduct of the duel itself. More detailed than its predecessors, the Irish and French dueling codes, Wilson’s rulebook set out time limits, the form and methods of written communications, the obligation to attempt reconciliation without bloodshed, and—if attempts at mediation failed—how to pace off the field of battle. Wilson professed that he was not advocating that adversaries settle their disputes through duels, but he claimed that dueling was inevitable “where there is no tribunal to do justice to an oppressed and deeply wronged individual.” He suggested that laying out practices and procedures to ensure that duels would be conducted fairly—including provisions for resolving disputes through apology and compromise—would in fact save lives.

It may be that Wilson’s code had exactly the opposite effect, glorifying and institutionalizing a barbarous practice that led to wanton death.”

That is how Chief Justice John Roberts started off his 2015 Yea-End Report on the Federal Judiciary in which he committed the entirety of the report on the procedures in the federal court.

Last December, after approval by the Supreme Court, the new amendments to the rules that govern procedure for for litigation in Federal Court took effect.

As noted by Benjamin Spencer, a professor of Law at the University of Virginia, Roberts praised the changes, which were aimed at curtailing the expense and delay often thought to accompany federal litigation:

The amendments, report the chief justice, require litigants to “work together, and with the court, to achieve prompt and efficient resolutions of disputes” and impose “reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” Now, writes Roberts, “lawyers must size and shape their discovery requests to the requisites of a case” and be limited to “what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery.”

Along with changes sharply curtailing the ability of courts to impose sanctions for the loss of certain discoverable material and the elimination of forms that guided litigants on how to state their claims in compliance with the rules, the chief justice concludes, “The 2015 civil rules amendments are a major stride toward a better federal court system.”

Cooperation. Proportionality. Curtailing expense and delay. Eliminating unnecessary and wasteful discovery. Who could disagree with reforms that pursue such laudable goals?

However, according to Spencer, that is what is deceiving about this latest move to reshape federal litigation. We agree.

Those responsible for reforming such procedure over the past 40 or so years have been masters at employing neutral-sounding principles in service of rules that in truth restrict the ability of the injured and the wronged from accessing courts to vindicate their legal rights.

The purpose of discovery in litigation is for the parties to exchange information that could assist each side in making their case. Typically, in David versus Goliath situations, the defendant is the party with most if not all of the significant information to be discovered. Preserving, reviewing and producing such information can be costly and time-consuming for large corporations and — even worse — can reveal evidence of liability. Corporate defendants have thus complained to their legislative representatives and to those in command of the federal civil rulemaking process that the rules must be changed to protect them against such discovery.

So Roberts and the committee of judges and lawyers that craft the rules have obliged. Now, discovery will be narrower in scope than before. Pesky document requests that defendants believe are too expensive to be justified can be rebuffed. And if defendants happen to “accidentally” or even recklessly lose documents that would have helped plaintiffs prove their claims, the rules will now shield them from any meaningful consequences. That is the import of the most recent amendments the chief justice praises.

These changes are in line with a long string of moves by the rulemakers and the Supreme Court to restrict access to justice — whether it be limiting the power of class action lawsuits, enforcing arbitration agreements that make claims unenforceable, or raising the bar for what information plaintiffs must present in order to initiate a claim in federal court.

The consequence of these and other similar reforms is not more fairness but less enforcement of important legal rules that govern the conduct of corporations and others in our society. We rely on private enforcement to deter and remedy corporate violations of consumer protection, products liability, securities, anti-discrimination and other laws. But this enforcement is becoming increasingly untenable as the Supreme Court and rulemakers persist in erecting barriers to initiating and maintaining a viable lawsuit in federal court.

Although John Lyde Wilson’s rule changes in 1838 had the opposite effect he intended, at least he had the interests of both parties in mind by creating a fair environment in which adversaries could settle their disputes on equal ground.