*This piece is cross-posted on the Public Justice blog.
The Federal Rules of Civil Procedure matter. They can determine who wins and who loses. And they have been changing in the wrong direction for some time. Now, proposed rule changes are moving forward and three things are clear: they are much better than what was originally proposed, they are still disturbing, and they demonstrate the critical importance of the Federal Rules process and access to justice advocates’ participation in it.
Last year, Professor Arthur Miller, perhaps the nation’s premier expert on federal civil procedure, published a landmark article, Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure. Reviewing a wide range of developments, including changes to the Federal Rules, Miller decried the fact that our civil justice system was moving away from both the goal plainly stated in Rule 1 – “the just, speedy, and inexpensive determination of every action and proceeding” – and the “justice-seeking ethos” on which the Federal Rules are based: the belief in “citizen access to the courts and in the resolution of disputes on their merits.”
He noted that the objective of the discovery process was “obvious and seemingly unobjectionable: The parties should have equal access to the all relevant data; litigation was to be resolved based on the revealed facts, not on who was better at chicanery or at hiding the ball.”