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Causes of Increased Litigation Costs

Gregory Joseph published an article entitled Federal Litigation–Where Did it Go Off Track? in the Summer 2008 issue of the ABA’s Litigation magazine that helpfully lists a number of reforms to the Federal Rules of Civil Procedure (and their interpretation) over the past 25 years that have had the effect (intentional or not) of substantially increasing the cost of federal litigation. These include the expansion in the applicability of Rule 11 sanctions, the increased reliance on motions for summary judgment, new opportunities to challenge the admissibility of expert testimony, new rules governing class actions, new rules governing electronic discovery, and a re-statement of Federal pleading requirements (discussed below in my post of May 23, 2007).

Mr. Joseph believes that these changes have made a federal forum more desirable for defendants, and less desirable for plaintiffs. I would agree that these changes have made federal litigation more expensive, but I think the effects are not limited to creating a federal court advantage for defendants and a disadvantage for plaintiffs.

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