Busting Up the Pretrial Industry

It is by now axiomatic that the objective of the civil lawsuit has evolved. Litigants no longer routinely resolve their disputes through trial but instead engage in pretrial battles designed to extract favorable settlements. Modern litigation revolves around protracted discovery and dispositive motions, driven by two primary dynamics: (1) the maximization of fees for lawyers who charge their clients by the hour; and (2) the desire to make litigation as painful as possible for an adversary so that settlement becomes the adversary’s better option. We have, in short, fostered a pretrial industry that can relegate the merits of a dispute to a secondary role in both the conduct of litigation and in its resolution. It raises important questions about the ethical obligations of lawyers to avoid improperly exploiting the powerful tools afforded by the judicial system for their clients’ or their own personal gain.The judicial system does a poor job of responding to the pretrial industry. Judges are often slow and reluctant to rule on civil motions, particularly discovery motions, so parties often have the unbridled ability to pursue or to obstruct discovery, regardless of the merits of their positions. In addition, judges are typically eager to move cases from their dockets by encouraging parties to settle. To make matters worse, the judicial system has responded to the pretrial industry by erecting litigation barriers that purport to solve the problem but that actually impose disproportionate burdens on the parties least able to bear them. Through higher pleading standards, tighter discovery rules, and greater reliance on summary judgment, judges have made it virtually impossible for parties with legitimate grievances but limited resources to have their day in court—especially against wealthier adversaries.Fixes are in order, and I here offer two. First, we should consider requiring parties to engage in early settlement evaluation—ideally before extensive discovery gets underway—by submitting cases to summary jury trials and imposing a range of consequences on parties who choose to disregard the results. Second, we need to allocate a greater percentage of judicial resources on discovery management in order to curtail the discovery free-for-all. Neither fix is without its costs, but the costs are likely much lower than the costs of perpetuating the pretrial industry that currently defines contemporary American civil litigation