Lawyers being lawyers, I have no doubt that there’s someone or some-many who are of the opinion that there is nothing wrong with the CCP in California. There are probably many more that are not of the opinion that it’s fundamentally broken. I am of the latter opinion. This report says not broken but in need of repair. (huh? do they mean “maintenance”?) So, I laud any group and any participants that have the time to put together a blue-ribbon panel, or a study group, or even pen an article on suggested reforms, but my eyeballs popped out at this one. I realize that the report is adressing the FRCP, but it’s second recommendation sinks the whole thing for me:
“Notice pleading should be replaced by fact-based pleading.”
According to 61% of the participants this leads to a bunch of unnecessary discovery. Is the goal to reduce the costs of discovery no matter what? or is it to reduce costs, period? Though I’m embarassed to report on more than one occassion that one of my fellow California attorneys has said to a judge in open court that California is a “notice pleading” state, I disagree. Witkin disagrees. It’s the basic reason we still call it a demurrer. But it’s fully cureable by amendment most of the time, and I stongly doubt that due process will permit a return to the one strike and your out common law writ of the 19th century.
Demurrers and pleadings motions in general are to be all some kind of subconscious prayer for a shortcut that doesn’t exist. This isn’t to say that they never have merit. But too many pleadings motions are filed that can be cured by simple amendment. So, is this report suggesting that we should trade discovery costs for law and motion costs? No, but I think they goof here.
The first suggesting is to adopt different sets of rules for different cases. In California, we have rarely-used limited civil, but… I prefer the English approach, identified in Appendix A which, among other things, has different procedures depending on the value of a case, just like California. But there are also pre action protocols for many types of disputes, and their procedure for summary judgment is more liberal (both ways). Of course, the prevailing party wins his fees there too, and public funding is available for people who cannot afford representation in certain situations. I think we all know that’s not going to happen here–good grief, that’s, that’s socialism!
So, I think the CCP is broken. But I know that it’s not going to be rewritten from scratch. I would simply request that we dispense with this nonsense of neutered written discovery, which is more or less created by judge’s always “hating discovery motions.” Judges should be more involved in discovery and punish parties who play games with the procedures. But, they don’t. We already have a procedure for cost-shifting in the CCP, but it’s very rarely used. It should be used all the time, and discovery motions should be hearable within one week.
(Oh, and just in case you’re backgrounding me on this blog: I have no plans to unilaterally disarm.)
Then English system is designed to minimize the transaction costs of litigation by getting the information to the other side fast. With the possibility of having to pay fees if you lose and being in a good position to make that determination (in addition to being required most of the time by the pre-action protocols to try and settle) cases can get settled quickly. And get this. It also makes going to trial cheaper!
Our system, whatever its design, has tacitly evolved to use the transaction cost of litigation as the deterrent to going forward. In other words, if you have more money to spend, your chances of a good result are higher. And since we lawyers oversee our own monopoly on the bar, it’s unlikely that we’ll midwife a system that seeks to minimize the transaction costs that, after all, are us.
So, I think anything that delays getting each side all of the relevant information is a problem. Pleadings motions often delay the beginning of discovery to a ridiculous degree: to a degree that makes trial within one year something that almost seems silly sometimes.
I like a lot of what they have to say, but if there are many more landmines like that one in the report, it’s more than “not broken but in need of repair” whatever that means.
UPDATE: I identified due process as a probable restriction on the reinstitution of strict fact pleading. Adopting some of the reforms used in other countries also face Constitutional barriers. Most English civil cases do not involve depositions or juries, and hearsay is allowed. Witnesses most often use declaration-like “statements” as their evidence.