A Quick Fix for the Federal Legal System - Civil Causes(CV) & Multi-Causes(MC)
Federal Rules of Civil Procedure #1 requires that every cause in the Federal System be absolutely determined both by Rule, and protected by Statute. However that is not what happens in practice.
Why?
For the simple fact that the Clerk of the Court, and The US Magistrates dismiss or delay most of what is filed until the litigants quit, or are forced to refile at a later time for one reason or another including filing of IFP's or request to proceed without fees which requires a judicial ruling in the Federal Courts, and is a task which the clerks of some states do for their judiciary (Texas, Pennsylvania).
Moving to a Hyper Efficient Federal Legal System which costs significantly less
We are proposing a simple set of steps which will result in most Federal Causes being determined in 3.15 hours of court time or less which is reasonable both for the litigants, and for the court. And of course such processes would eliminate non-court hours the magistrative judges spend today on such issues. With a prevailing rate of about 1000.00 for court time for a Federal Litigator, this would result in perhaps 3500 in court costs, and perhaps 10 hours of preparation at 500.00 per hour. Thus the average proceeding in Federal Court should cost about 10K dollars.
I happen to know that most Federal Litigators will not touch a cause without at least a retainer of 500K dollars, and thats only if they get to file all of the pleadings. If they have to change or modify someone eles's judgements they want significantly more. Typically third party counsel on counsel will tell you everything you have done so far is horrible so that they have discretion to start over.
We are proposing two major changes as follows:
ISSUE #1 - Restructuring the Civil Pre-Trial Cause Structure
The major issue in preparing for civil litigation is preparing for the worst. Companies which have a minor claim which they dont mind resolving in court could easily get worse with unplead issues which are present in-limine. Furthermore, skilled litigators try to suprise their opponent in the course of their questioning so that these issues are natural. They do this so they dont get sanctioned/disbarred for suprise relief or held in contempt of court by the Trial Judge. Because large litigation firms know that this is possible for even the smallest cause in Federal Court they ask for massive retainers to handle any eventuality, and they prepare 10X as much as they need to for the same reason.
Companies have responded by picking giant law firms to handle all of their causes with one massive retainer rather than lots of small ones. That avoids smaller, better boutique law firms which are better able to handle general litigation on small amounts of money. The result has been massive law firms with 10's of thousands of attorneys in every Federal District, and at least the major 25 overseas countries of operations.
If issues are restricted in any form post the show-cause structure, we think this will be eliminated most of the time. It will however bring forward some issues which perhaps the company in question didnt want to know a bit earlier. It should however result in significantly improved pacing of civil litigation as a company as Large as Bank of America is certainly not going to be worried about a 100K loss, but they will be worried about a 10M criminal sanction where other parties could attach and create a class.
We are simply suggesting that specific fines and criminal sentences to attorneys who plead any criminal issues past the show cause. It wont literally be possible without a 30 day jail sentence for criminal contempt(and not civil contempt).
Proposed FRCP Rule #1.1 - Show Cause - A Show Cause will be held for every civil cause to verify the form and substance of a Petition, and that a docketing statement be well formed with all statute plead in advance. Following the show cause any criminal relief sought in any form in a civil cause via cross claims will result in a six month criminal finding against the petitioning attorney. If Criminal Issues are plead, the moving party needs to request the court change the type of cause to "MC" or Multi-Cause at the show cause hearing. This is sufficient notice of cross-claims in future hearings/trial settings.
Proposed FRCP Rule #1.2 - Show Cause - Additional Civil Issues on the same sets of facts can be brought up in-limine in a proceeding without restriction beyond the original show cause, only by motion for leave of court. Any new facts not plead should be included in an amended Petition which should also be filed at this time with a Motion for Leave of Court.
In most cases no depositions would occur until the show cause. No evidence would be collected until the show cause other than is what in the movants possession.
ISSUE #3 - LAWYERS PUBLISHING A TARIFF FOR THE PRELIMINARY HEARING STRUCTURE
We are proposing that major law firms have to publish by law a Tarriff for Federal Proceedings which can be determined in the 3.15 hour block (The Average Form for Civil Proceedings). In other words law firms could in fact agree to the findings of fact of the US Magistrate after the parties exhaust their individual hours. In other words you would not be able to practice law in the District of South Carolina without publishing a tarriff on your walk in cost for new litigation under this structure.
Such a structure would allow junior lawyers to practice law in a controlled format which will improve the quality of the bar across the board. In fact in may be preferable to multi-day trials as it forces a consolidation of evidence which most Senior Judges require anyway. The Chief Judge of the SDNY of NY which might have 400 causes at any one point in time is not going to allow multi-day expert testimony without briefings on why its necessary. So 3.15 hours is about right before most judges want to throw up.
The short form would also prevent malpractice claims, as it would force the complexity of the potential litigation into the open.
FURTHER SUPPORT OF #1 - MARSHALLING ALL EVIDENCE ON THE PUBLIC DOCKET
The primary issue right now is that US Magistrates ask for literally every potential evidentiary document to be served to the court and opposing counsel before they issue a summons. Since Magistrate judges are not allowed to hear issues on the merits by law unless the right is deffered by both parties we believe this is illegal.
I believe that both Judge Gossett from the District of South Carolina, and Judge Swank from the Eastern District Court of NC are in error in recent causes involving our company. That does not mean the court does not extend a show cause hearing for an additional 10 minutes for a few expert reports to be admitted into evidence but not on the public docket.
Other issues with this are in fact slander and liable, and very specific pleadings which harm both movants all because of what we believe was an incorrect process in Bell Atlantic v Twombly which changed the standard in Civil Courts. We therefore Urge Congress to consider our rules, as we believe the Supreme Court of the United States has nearly ruined the legal process in the United States with a single mis-tried cause.
In that cause Mr. Twombly, due to a very specific contract he signed had given up his right to any relief other than to switch carriers and terminate his contract, and even then only with penalties. He had no standing to review the general tariff pricing of Bell Atlantic, unless it was much higher than other carriers, and he had no ability to switch to a competitor. Since Bell Atlantic has always competed with ATT, Comcast, SNET, MCI, and Bell South among others this was in fact a MAJOR error of procedure by the 2nd circuit, and thereafter by the US Supreme Court. Mr. Twombly had to file a complaint with the FCC under US law, and then it would be up to the FCC of whether they wanted to proceed. The cause should have been dismissed for that issue alone.
EXPECTATION
Most causes get dropped in a show cause on the merits which terminates the cause hard with no possibility for retrial. (50%)
Some causes proceed with show causes to preliminary hearings on the merits (50%)
Few Causes proceed to a formal trial on the merits following the recommendation of the magistrates and their findings at a preliminary hearing. (25%).
So out of a 100 causes - expectation 50 get 5 minutes, 50 get three full hours, and 25 get 1 week.
Average Preliminary time = 2.5 + 152.5 = 155 Hours or an average of 1.55 hours per cause with no change for retrial of any of the 100, all hard determined.
25 X 35 Hours = 875 Hours for those which go to trial. (1 Week Trials still have a lunch break and are assumed to run 9am to 5pm with an hour break). 1 Week is arbitrary, the court may have a mixed setting for 1 full day, and up to 8 day settings.
So for 100 Causes the court would use 155 + 875 Hours of court time = 1030 hours or 10.3 hours per cause with this model.
Today the Court charges 300 per cause, so litigants are essentially paying 30/hr for court time, excluding attorneys. Plus the court charges for copies, and damages at the end. The courts assuming the US Government pays cash for the court complexes should end break even. The court only has to pay for its own labor.
Enterprises who need more than 1 week should have to pay the court for time at $2000.00 per hour by the moving party, and such settings would hardly ever be granted.
Some State Comparisons
Of course Texas has a much better system, where there is a State Docket Call on the day of your setting where you simply announce for court time. This announcement is subject to judicial review on the day of trial with all multi-day trials being set on mondays. There is no magistrative review in Texas unless an IFP is needed, and such IFP's can be done ex-parte at Duty Judge Docket assignments.
Such a process is not used in Federal District Court as they tend to spend all of their actions on criminal proceedings unfairly.
Why?
For the simple fact that the Clerk of the Court, and The US Magistrates dismiss or delay most of what is filed until the litigants quit, or are forced to refile at a later time for one reason or another including filing of IFP's or request to proceed without fees which requires a judicial ruling in the Federal Courts, and is a task which the clerks of some states do for their judiciary (Texas, Pennsylvania).
Moving to a Hyper Efficient Federal Legal System which costs significantly less
We are proposing a simple set of steps which will result in most Federal Causes being determined in 3.15 hours of court time or less which is reasonable both for the litigants, and for the court. And of course such processes would eliminate non-court hours the magistrative judges spend today on such issues. With a prevailing rate of about 1000.00 for court time for a Federal Litigator, this would result in perhaps 3500 in court costs, and perhaps 10 hours of preparation at 500.00 per hour. Thus the average proceeding in Federal Court should cost about 10K dollars.
I happen to know that most Federal Litigators will not touch a cause without at least a retainer of 500K dollars, and thats only if they get to file all of the pleadings. If they have to change or modify someone eles's judgements they want significantly more. Typically third party counsel on counsel will tell you everything you have done so far is horrible so that they have discretion to start over.
We are proposing two major changes as follows:
ISSUE #1 - Restructuring the Civil Pre-Trial Cause Structure
- Step #1 - A Petition is Filed with the clerk of the court which recieves a cause #. Included with that Petition is a Docketing Statement.
- Step #2 - The Moving Party within one week has to record a short video deposition either in person or in the court which explains the cause, and what kind of relief is required. This effectively will require the moving party to read the docketing statement into the record.
- Step #3 - The Clerk of the court reviews the Docketing Statement for completeness, and sends other questions electronically to the movant as necessary. IE if its a contract claim, does 28 USC 1332 apply.
- Step #4 - Opposing Counsel gets to file a counterpetition, and counterdocketing statement within the time allowed including video support if necessary.
- Step #5 - A Show cause is set with a Magistrate for exactly 15 minutes where the magistrate reviews the pleadings, the docketing statement, and asks any questions about the proceeding. The Magistrate is not expected to prepare for this hearing, and it is not on the merits. During this time, the parties can in fact record their opening statements if they so desire so that at a minimum every cause will have a 15 record on the issues before the court. This at a minimum would be what would be required to appeal for the Appellate Courts. Preliminary hearings would be set at 45 days from all Orders to Cure are resolved.
- Step #6 - If the show Cause does not result in dismissal of the complaint, the Magistrate (and not the district court would set a preliminary hearing). This is an evidentiary hearing of three hours or less will take evidence, as many as three experts, and reserve an hour for questions by the court. IE each side gets exactly an hour. At this point all expert determinations would have to be made, an announcement for trial length would need to be included. Discovery limitations and restrictions would be included. At this point the parties can defer to the magistrates preliminary ruling, or move to trial. Most cases will end at this stage. The magistrate will enter their findings of facts for the proceeding entered so far with no orders, except a trial setting, and any discovery orders, unless the parties waive rights to a District Judge and ask the Magistrate to try the cause.
- Step7 - Formal trial on the merits within sixty days of the Preliminary hearing unless other motions are filed in objection.
The major issue in preparing for civil litigation is preparing for the worst. Companies which have a minor claim which they dont mind resolving in court could easily get worse with unplead issues which are present in-limine. Furthermore, skilled litigators try to suprise their opponent in the course of their questioning so that these issues are natural. They do this so they dont get sanctioned/disbarred for suprise relief or held in contempt of court by the Trial Judge. Because large litigation firms know that this is possible for even the smallest cause in Federal Court they ask for massive retainers to handle any eventuality, and they prepare 10X as much as they need to for the same reason.
Companies have responded by picking giant law firms to handle all of their causes with one massive retainer rather than lots of small ones. That avoids smaller, better boutique law firms which are better able to handle general litigation on small amounts of money. The result has been massive law firms with 10's of thousands of attorneys in every Federal District, and at least the major 25 overseas countries of operations.
If issues are restricted in any form post the show-cause structure, we think this will be eliminated most of the time. It will however bring forward some issues which perhaps the company in question didnt want to know a bit earlier. It should however result in significantly improved pacing of civil litigation as a company as Large as Bank of America is certainly not going to be worried about a 100K loss, but they will be worried about a 10M criminal sanction where other parties could attach and create a class.
We are simply suggesting that specific fines and criminal sentences to attorneys who plead any criminal issues past the show cause. It wont literally be possible without a 30 day jail sentence for criminal contempt(and not civil contempt).
Proposed FRCP Rule #1.1 - Show Cause - A Show Cause will be held for every civil cause to verify the form and substance of a Petition, and that a docketing statement be well formed with all statute plead in advance. Following the show cause any criminal relief sought in any form in a civil cause via cross claims will result in a six month criminal finding against the petitioning attorney. If Criminal Issues are plead, the moving party needs to request the court change the type of cause to "MC" or Multi-Cause at the show cause hearing. This is sufficient notice of cross-claims in future hearings/trial settings.
Proposed FRCP Rule #1.2 - Show Cause - Additional Civil Issues on the same sets of facts can be brought up in-limine in a proceeding without restriction beyond the original show cause, only by motion for leave of court. Any new facts not plead should be included in an amended Petition which should also be filed at this time with a Motion for Leave of Court.
In most cases no depositions would occur until the show cause. No evidence would be collected until the show cause other than is what in the movants possession.
ISSUE #3 - LAWYERS PUBLISHING A TARIFF FOR THE PRELIMINARY HEARING STRUCTURE
We are proposing that major law firms have to publish by law a Tarriff for Federal Proceedings which can be determined in the 3.15 hour block (The Average Form for Civil Proceedings). In other words law firms could in fact agree to the findings of fact of the US Magistrate after the parties exhaust their individual hours. In other words you would not be able to practice law in the District of South Carolina without publishing a tarriff on your walk in cost for new litigation under this structure.
Such a structure would allow junior lawyers to practice law in a controlled format which will improve the quality of the bar across the board. In fact in may be preferable to multi-day trials as it forces a consolidation of evidence which most Senior Judges require anyway. The Chief Judge of the SDNY of NY which might have 400 causes at any one point in time is not going to allow multi-day expert testimony without briefings on why its necessary. So 3.15 hours is about right before most judges want to throw up.
The short form would also prevent malpractice claims, as it would force the complexity of the potential litigation into the open.
FURTHER SUPPORT OF #1 - MARSHALLING ALL EVIDENCE ON THE PUBLIC DOCKET
The primary issue right now is that US Magistrates ask for literally every potential evidentiary document to be served to the court and opposing counsel before they issue a summons. Since Magistrate judges are not allowed to hear issues on the merits by law unless the right is deffered by both parties we believe this is illegal.
I believe that both Judge Gossett from the District of South Carolina, and Judge Swank from the Eastern District Court of NC are in error in recent causes involving our company. That does not mean the court does not extend a show cause hearing for an additional 10 minutes for a few expert reports to be admitted into evidence but not on the public docket.
Other issues with this are in fact slander and liable, and very specific pleadings which harm both movants all because of what we believe was an incorrect process in Bell Atlantic v Twombly which changed the standard in Civil Courts. We therefore Urge Congress to consider our rules, as we believe the Supreme Court of the United States has nearly ruined the legal process in the United States with a single mis-tried cause.
In that cause Mr. Twombly, due to a very specific contract he signed had given up his right to any relief other than to switch carriers and terminate his contract, and even then only with penalties. He had no standing to review the general tariff pricing of Bell Atlantic, unless it was much higher than other carriers, and he had no ability to switch to a competitor. Since Bell Atlantic has always competed with ATT, Comcast, SNET, MCI, and Bell South among others this was in fact a MAJOR error of procedure by the 2nd circuit, and thereafter by the US Supreme Court. Mr. Twombly had to file a complaint with the FCC under US law, and then it would be up to the FCC of whether they wanted to proceed. The cause should have been dismissed for that issue alone.
EXPECTATION
Most causes get dropped in a show cause on the merits which terminates the cause hard with no possibility for retrial. (50%)
Some causes proceed with show causes to preliminary hearings on the merits (50%)
Few Causes proceed to a formal trial on the merits following the recommendation of the magistrates and their findings at a preliminary hearing. (25%).
So out of a 100 causes - expectation 50 get 5 minutes, 50 get three full hours, and 25 get 1 week.
Average Preliminary time = 2.5 + 152.5 = 155 Hours or an average of 1.55 hours per cause with no change for retrial of any of the 100, all hard determined.
25 X 35 Hours = 875 Hours for those which go to trial. (1 Week Trials still have a lunch break and are assumed to run 9am to 5pm with an hour break). 1 Week is arbitrary, the court may have a mixed setting for 1 full day, and up to 8 day settings.
So for 100 Causes the court would use 155 + 875 Hours of court time = 1030 hours or 10.3 hours per cause with this model.
Today the Court charges 300 per cause, so litigants are essentially paying 30/hr for court time, excluding attorneys. Plus the court charges for copies, and damages at the end. The courts assuming the US Government pays cash for the court complexes should end break even. The court only has to pay for its own labor.
Enterprises who need more than 1 week should have to pay the court for time at $2000.00 per hour by the moving party, and such settings would hardly ever be granted.
Some State Comparisons
Of course Texas has a much better system, where there is a State Docket Call on the day of your setting where you simply announce for court time. This announcement is subject to judicial review on the day of trial with all multi-day trials being set on mondays. There is no magistrative review in Texas unless an IFP is needed, and such IFP's can be done ex-parte at Duty Judge Docket assignments.
Such a process is not used in Federal District Court as they tend to spend all of their actions on criminal proceedings unfairly.
Comments
Post a Comment