Federal Rules Counter-Revolution

A report issued this spring by the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System, made a number of recommendations that would reverse many of the most basic reforms of the Federal Rules of Civil Procedure. These include replacing notice pleading with fact-based pleading, a change that the Supreme Court is already well on its way to imposing (see this post); more flexibility in the rules for different kinds of cases; new summary adjudication procedures; and substantial limitations on discovery, which the authors themselves call their most “radical proposal.”

To appreciate the change in direction that these recommendations would represent, it is useful to remember the thinking behind the Federal Rules of Civil Procedure when they were adopted back in the 1930’s. One idea was to replace archaic and complicated pleading rules, that caused much litigation, with modern, simplified pleading rules. The concepts of causes of action and demurrers would be abolished. Technical pleading requirements would be abandoned in favor of allowing short statements of the claim that were merely intended to give the defendant notice of what the case was about. As these concepts have evolved over the years, however, outmoded pleading concepts seem have crept back into practice. Demurrers may have been abolished, but 12(b)(6) motions as to individual claims are allowed, and courts have also permitted motions for “partial summary judgment,” which do not appear in the rules, as another means of reviving the function of the abolished demurrer. Short and plain statements of the claim have gotten longer and more convoluted, and the courts now expect substantially more than notice pleading. The ACTL and IAALS report would wholly abandon the original idea of the Federal Rules to simplify the early stages of litigation, in favor of even more beefed-up pleading requirements presumably designed to weed out weak cases at the pleading stage, instead of opening them up to expensive discovery proceedings.

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