Brooke D. Coleman

  • January 4, 2016
    Guest Post

    by Brooke D. Coleman, William C. Oltman Professor of Teaching Excellence, Seattle University School of Law

    When the Federal Rules of Civil Procedure were adopted in 1938, they came with a set of forms that were meant to illustrate and, importantly, suffice under the rules. These forms, according to the original rule makers, were key to the success of the Civil Rules because they would be the “pictures” that would accompany the rules. It is worth remembering that the ethos behind the adoption of the 1938 Civil Rules as a whole was to eliminate needless technicalities and barriers to access. Simplifying the process so that the merits could be reached was the goal. The forms were an important part of reaching that goal because a litigant could use the form, and as long as the form was used correctly, courts had to accept it.

    As of December 1, 2015, Rule 84 and the Official Forms were erased from the Civil Rules forever. As I have written here and here, there are a number of reasons to believe that this was a bad idea. (Others have also argued as much here and here.) The Civil Rules Committee argued that the forms were out of date and that the Committee wanted to get out of the form-making business. The easiest solution was to eliminate the forms altogether. As a consolation for eliminating the forms, the Committee stated that the Administrative Office of the Courts would publish sample forms for federal court litigants. It appears that this consolation prize is indeed in the works.

    In his year-end report for the Court, Chief Justice John Roberts explained that some new forms had already been drafted by “a group of experienced judges” assembled by the Administrative Office of the Courts. These new forms can be found here. Chief Justice Roberts explained further that the “outdated forms” of the past would be replaced with these “modern versions that reflect current practice and procedure.”

  • February 14, 2014
    Guest Post

    by Brooke D. Coleman, Associate Professor, Seattle University School of Law

    Litigation reform is bandied about in an inevitable way. The narrative supporting such reform says that corporations are coerced into settling frivolous claims because the cost of litigating in federal court is so high. Further, the story goes, corporations do not want to be in the United States because the litigation risks are too much. This narrative of excessive cost and abuse is used to justify various litigation reforms, ranging from tort reform to attorney sanctions. The most recent entrant into the reform fray comes from the Committee on Rules of Practice & Procedure of the Judicial Conference of the United States. This rulemaking body has proposed amendments to the Federal Rules of Civil Procedure. These amendments would make it easier for parties to resist producing documents, provide greater protection to parties who fail to preserve key information, and limit the number of ways parties can request information from one another. By limiting access to information in this way, these proposed amendments to the discovery rules promise to lower litigation costs. 

    The problem with this narrative and the attendant reforms is that they are inaccurate. First, discovery costs are generally not too high in comparison to the stakes parties have in litigation.  Second, the argument that the proposed restrictions on discovery are justified undervalues the benefit of civil litigation.