Reconceptualizing Managerial Judges

Abstract

INTRODUCTIONFederal litigation operates today in a changed environment. In particular, the disappearance of the trial from federal court is well documented.1 In 1938, when courts first began operating under the Federal Rules of Civil Procedure, about eighteen percent of cases went to trial.2 The percentage fluctuated thereafter, but trended downward over the years, falling to the eleven to twelve percent range during the late 1960s and '70s.3 By 1984, it had decreased to about six percent.4 Today, just over one percent of cases go to trial.5This precipitous decline in trials has been the focus of numerous articles.6 Coercion by judges to settle cases on their dockets and the cost of litigation in general, or discovery in particular, are potential culprits behind this trend.7 Regardless of the cause of the decline in trials, however, the consequence is the same: if judges are to have a meaningful role in advancing the "just, speedy, and inexpensive" determination of matters before them, they cannot primarily play their part in a black robe ruling on evidentiary objections at trial. Rather, the role of judges must adapt to the new litigation climate and must focus on the pretrial process.The Federal Rules of Civil Procedure ("Rules") were conceived as one unified set of rules flexible enough to govern cases of all sizes and variations in complexity.8 Discovery illustrates this point nicely. Discovery is scalable-capable of being expanded for large complex cases and shrunk for small, simple ones.9 Because discovery must be tailored to fit the particulars of each case, it is one phase of litigation where the debate about active judges crystalizes: do the parties make the alterations themselves, or does the judge fashion the process?10 This Article will use discovery to explore the issues surrounding the evolving role of judges throughout the pretrial proceedings.Although the Rules authorize the judge to "right-size" discovery in the initial case management order, much of the scaling is typically delegated to the parties in the first instance, with the judge engaging only upon request.11 In our adversarial system, however, cooperation among the parties on how to configure discovery, without the ongoing monitoring and assistance of the judge, is simply not realistic in many cases. As a starting point, the parties typically have diametrically opposite and mutually exclusive objectives in the litigation. Furthermore, the asymmetries between the parties often make it difficult to find common ground on even procedural issues; one party will often have more electronically stored information than the other, will have more resources to devote to discovery, or will experience disproportionately greater advantage or disadvantage from delay.12 Indeed, discovery has been compared to nuclear war.13 It should not be surprising then that these asymmetries in resources and strategy lead adversaries to seek tactical advantages in the pretrial process rather than setting those interests aside to work cooperatively with their opponents.14Under the current rules, the only mandated interaction with the judge before or during the discovery process occurs in connection with the parties' Rule 26(f) proposed discovery plan.15 In the majority of cases, the judge charts the course of the discovery process based only on that document, without even speaking with the parties.16 In other cases, the judge speaks with the parties at an initial Rule 16 conference prior to issuing the case management order.17 Many of these judges then disengage after the first conference, leaving the parties to manage themselves unless a dispute arises.18Neither of these approaches is a recipe for effective and efficient pretrial proceedings. A judge who does not even meet with the parties before setting the discovery parameters is hardly in a position to assess all of the complexities that should factor into decisions about how the case should proceed. …