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Chief Justice Roberts Wants Less Courtroom Gamesmanship

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By Jonathan R. Tung, Esq. on January 05, 2016 5:59 AM

The most senior judge in our land had some critical words for his more junior federal counterparts and for lawyers in general. In Chief Justice Robert's opinion, there's just too much in the way of bad-faith tactics in the practice of law. Whatever happened, lamented the Chief Justice, to just, speedy, and efficient resolutions to civil disputes?

It appears that Roberts is at the end of his tether waiting for lawyers to police themselves and has encouraged lower federal judges to assume a greater role in management and progression of the discovery process in civil disputes.

Call to Arms

Using his end of the year report as a launching pad to enter into a more didactic mode, Chief Justice Roberts of the U.S. Supreme Court wagged his fingers at lawyers who stymied the efficient and speedy resolution of civil disputes through expensive (and expansive) demands for documents and things during the discovery process. He remarked rather despondently that he could not believe that a great many people attended law school with the intent of getting into long drawn out burdensome discovery disputes and employing "dilatory tactics."

Digitial Discovery Dilemma

Roberts called on federal civil trial judges to manage civil cases more actively, rather than let the opposing lawyers to their own slow -- and expensive -- devices. As time marches forward, discovery costs are likely to become more expensive -- at least near term -- given that an overwhelming amount of it is in electronic form.

Changes: "Proportional to the Case"

Roberts paid particular focus to recent changes to the Federal Rules of Civil Procedure (of which we all knew and loved in law school) and applauded the amendments which he quickly opined as being a welcome limit on the discovery process and demands to being "proportional to the case."

But others were less sanguine and warm about the changes. Suja A. Thomas of the University of Illinois remarked that the changes are appropriate only for a minority of cases where discovery abuse is rampant, and overall were not a good fit for the grand majority of civil disputes. Stephen Burbank, a law professor at UPenn, voiced similar concerns.

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