Is Now the Time for Simplified Rules of Civil Procedure

Unfortunately, any objective evaluation of current federal civil process will inevitably lead to the conclusion that the process is functioning inadequately in its purpose of discharging justice speedily and inexpensively. One need only ask any trial lawyer whether he can try a medium-sized commercial dispute to judgment in a federal court in less than three years and at a cost of less than six figures. Is the iconic appellation of “making a federal case out of a dispute” not the ultimate condemnation of current judicial process in federal courts? Can we understand the private bar’s flight from federal courts to arbitrations, mediations, and other methods of alternative dispute resolution as anything but the bar’s vote against the process provided by the Federal Rules of Civil Procedure? We rightly fear the answers to these questions, which we see in our own observations and in the available empirical evidence. And because we do, I submit, the time has come for a systematic review of civil process with a genuine openness to undertaking a serious and determined effort to simplify the Federal Rules of Civil Procedure. When I was Chairman of the Civil Rules Advisory Committee, Professor Edward H. Cooper, the Committee’s Reporter, and I initiated just such an undertaking. My tenure as Chairman, however, which had already been extended, ended in 2000, before we made much progress in this endeavor. Professor Cooper nonetheless preserved the beginnings of our effort in his essay, Simplified Rules of Federal Procedure?.4 It is now time, I suggest, to revisit these beginnings and draw upon Professor Cooper’s experience and leadership to resurrect this important and necessary effort.