Here's his year end report. He starts with a story about dueling, including this gem:
Public opinion ultimately turned against dueling as a means of settling
quarrels. By 1859, eighteen of the 33 States of the Union had outlawed
duels. Following the Civil War, a public weary of bloodshed turned
increasingly to other forums, including the courts, to settle disputes. But
reminders of the practice persist. When Kentucky lawyers are admitted to
the bar, they are required, by law, to swear that they have not participated in
a duel.
Today, Wilson’s pamphlet stands on the bookshelf as a largely
forgotten relic of a happily bygone past. But it is also a stark reminder of
government’s responsibility to provide tribunals for the peaceful resolution of all manner of disputes. Our Nation’s courts are today’s guarantors of
justice. Those civil tribunals, far more than the inherently uncivilized
dueling fields they supplanted, must be governed by sound rules of practice
and procedure.
The Chief highlighted changes in the Rules of Civil Procedure that attempt to get rid of some of the bickering:
Rule 26(b)(1) crystalizes the concept of reasonable limits on
discovery through increased reliance on the common-sense concept of
proportionality:
“Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the
needs of the case, considering the importance of the issues at stake in
the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit.”
7
The amended rule states, as a fundamental principle, that lawyers must size
and shape their discovery requests to the requisites of a case. Specifically,
the pretrial process must provide parties with efficient access to what is
needed to prove a claim or defense, but eliminate unnecessary or wasteful
discovery. The key here is careful and realistic assessment of actual need.
That assessment may, as a practical matter, require the active involvement of
a neutral arbiter—the federal judge—to guide decisions respecting the scope
of discovery.
And the conclusion:
As for the lawyers, most will readily agree—in the abstract—that they
have an obligation to their clients, and to the justice system, to avoid
antagonistic tactics, wasteful procedural maneuvers, and teetering
brinksmanship. I cannot believe that many members of the bar went to law
school because of a burning desire to spend their professional life wearing
down opponents with creatively burdensome discovery requests or evading
legitimate requests through dilatory tactics. The test for plaintiffs’ and
defendants’ counsel alike is whether they will affirmatively search out
cooperative solutions, chart a cost-effective course of litigation, and assume
shared responsibility with opposing counsel to achieve just results.
I am hardly the first to urge that we must engineer a change in our
legal culture that places a premium on the public’s interest in speedy, fair,
and efficient justice.
But I am motivated to address the subject now because
the 2015 civil rules amendments provide a concrete opportunity for actually
getting something done.
In the nineteenth century, a change in culture left dueling by the
wayside and left us with lessons learned. Joseph Conrad’s novella
“The Duel” tells the tale, taken from fact, of two gallant French cavalry officers, D’Hubert and Feraud. Estranged by a trifling slight, they
repeatedly duel over a 15-year period. According to newspapers of the era,
the real-life antagonists, Dupont and Fournier, would cross swords and draw
blood whenever their military service brought them near to one another.
Conrad’s characters, like the real ones, relentlessly persist in their personal
feud through the rise, fall, reemergence, and ultimate exile of Napoleon, as
the world transforms around them. In the end, these soldiers, who should
have been comrades in a patriotic cause, spent much of their adult lives
focused on a petty squabble that left them with nothing but scars. We should
not miss the opportunity to help ensure that federal court litigation does not
degenerate into wasteful clashes over matters that have little to do with
achieving a just result.
Another year has quickly passed, and once again, I am privileged and
honored to be in a position to thank all of the judges, court staff, and judicial
personnel throughout the Nation for their continued excellence and
dedication.
Best wishes to all in the New Year.
Speaking of the new rules and proportionality, there are no rules helping the criminal defense bar with discovery. It used to be that prosecutors would give so little to the defense that most of the pretrial litigation would be focused on getting important documents and information to help prepare a defense. Now the government has taken the opposite tack -- drown the defense with every possible piece of paper out there. When the defense attorney complains to the judge, the prosecutor will say, "but judge, I gave them everything." (Many judges have caught on to this tactic and are now ordering the prosecution to disclose discovery indexes and exhibit lists well in advance of trial, as well as Jencks material and witness lists. But some judges still refuse to do so.) Providing terabytes of data, of course, is not much better than providing nothing at all because most of these documents are completely irrelevant and impossible to wade through.
This costs the judiciary lots and lots of money when the CJA panel lawyer, who has no choice but to go through all of the paper because the prosecution refuses to narrow the discovery to important documents, bills for all of this time. This is one of the issues that will be discussed at the
public hearing to address the Criminal Justice Act Program on January 11 and 12 in Miami.
Here is the agenda.
I will be testifying. So will Judge Graham. Judge Graham has asked that if you have any issues that you'd like him to address to please let him know. Feel free to email me at dmarkus@markuslaw.com and I will forward your email to him.
