The Perils of Productivity

This Essay urges that those who seek to minimize delay in litigation should proceed with greater caution. Productivity reform proponents usually assume that an increase in case processing speed can be purchased at little cost to other procedural values, but this may not be the case. Such reforms may lower the quality of lawyers’ case preparation and worsen the quality of judicial decisions. The extent of these effects is unclear because the proponents of such changes have not made an effort to establish that increases in speed can be achieved without undermining the accuracy of litigation outcomes. Relatedly, it is common to assume that reductions in time to disposition usually result in increased litigant satisfaction and decreased litigation costs. These assumptions, however, are doubtful in theory and contrary to the existing empirical evidence. As a result, we should be quite cautious before assuming that a reform that speeds case processing is an improvement to the litigation process