The Plaintiffs' Bar Speaks: Will the Advisory Committee Listen?

Happy new year to everyone!  I've spent some time between shopping, cooking, and eating – will the holidays NEVER END?? – looking at the public comments submitted on the proposed amendments to the Federal Rules of Civil Procedure.

I looked at all the comments filed up to December 19, 2013.  Most of the comments were filed by self-identified plaintiffs' lawyers.  A fair number of commenters did not explicitly identify the type of client they primarily represented.  As 2013 progressed, a smattering of self-identified defendants' attorneys commented.  I counted only three full-time law professors among the commenters and two federal judges (most were opposed to the amendments).  I plan to comment and am presently working on my draft.  I oppose most of the amendments.

The results so far: of 328 non-duplicate filings, 281 commenters, or 86%, were opposed to all the amendments they commented on.  (Most commenters did not address all of the amendments.)  Thirty-one commenters (9%) were opposed to some of the amendments and supported some of the amendments.  These were primarily lawyers who opposed most of the amendments but found one or two amendments to say something nice about, probably for the sake of politeness or credibility.

That leaves 11 commenters (3%) supporting the amendments.  Of those 11, six were self-identified defendants' lawyers, and five did not identify the type of client primarily represented. 

Plaintiffs' lawyers gave example after example of meritorious cases they had handled where the proposed presumptive limits on discovery and the proposed redefinition of the scope of discovery would have stopped them from surviving a summary judgment motion. 

Before the so-called "Duke Conference" that germinated these proposals, the Federal Judicial Center surveyed attorneys who handled cases that terminated in the last quarter of 2008.  The results of private attorney responses to the statement "The outcomes of cases in the federal system are generally fair" were:

 

 Federal Judicial Center Survey, 2009

Private Attorney Responses to the Statement

"The outcomes of cases in the federal system are generally fair"

(frequencies are estimated, not provided by FJC)

 

	Agree or Strongly Agree	Disagree or Strongly Disagree	"Neither Agree Nor Disagree" or "Can't Say"	Number of Private Attorneys
Private attorneys primarily representing plaintiffs	54% N = 436	22% N = 182	24% N = 192	810
Private attorneys primarily representing defendants	80% N = 769	4% N = 40	15% N = 149	958

 

            These results were not included in the FJC's final report on the survey.  They are contained in the preliminary report, although not in the detail above, which I estimated from other information the FJC provided. 

Plaintiffs' attorneys, in other words, were more than five times more likely than defendants' attorneys to believe that the outcome of cases in the federal system is substantively not fair.  Now, as evidenced by the public comments, the vast majority of plaintiffs' attorneys oppose the proposed amendments to the FRCP while the vast majority of defendants' attorneys support the amendments.

Please, someone convince me not to give in to cynicism.  We're starting a new semester on Monday.

See you at AALS.