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Bar News - April 16, 2010


Discovery and Civil Justice Rules Pilot Project Set for Launch

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Drafters of new discovery and disclosure rules - which will be tried out starting next fall in Carroll and Strafford counties - believe the pre-trial path to the courthouse will be shorter and speedier.
A new pilot project will begin this fall in Strafford and Carroll County superior courts which is designed to make the civil litigation process in our state more efficient and affordable for citizens who come to our courts to resolve disputes.

Too often parties on both sides of a lawsuit find themselves mired in lengthy pretrial proceedings while their legal bills mount and frustration with the administration of justice grows. For many practitioners, cases are no longer driven by their merits - instead they coast along through the court system. Pages of interrogatories are answered, hours of depositions are taken and then disputed - often on issues of tangential relevance - slowing down the process and increasing costs. Even mediation and arbitration is stalled by drawn-out discovery. The discovery process has become an end in itself instead of the means toward reaching a jury verdict or settlement within a reasonable time.

With our state’s economy in serious decline, and with our court system shutting down for unpaid furloughs to save money, the message seems clear - we have to change the way we practice civil litigation to make it more efficient and less expensive. This will also address the needs of the increasing number of litigants coming to our courthouses on their own, without legal representation at all. If we are to meet their expectation of real access to justice, we need to simplify the civil litigation process for them, make it more efficient, so results are quicker and more affordable. That is what real access to justice means.

We believe that five simple changes in Superior Court pleading and discovery rules, approved on a temporary basis by the Supreme Court, that will be used in the pilot project in Strafford and Carroll counties, will make a significant difference in the way cases flow through the civil litigation process in our state courts.

Since last June, we have been working with a small group of New Hampshire Fellows of the American College of Trial Lawyers (ACTL) to analyze these issues and recommend changes that would gain the support of the New Hampshire legal community, and improve the administration of justice for their clients. We took our lead from the findings of the 2009 American College of Trial Lawyers Task Force on Discovery and Civil Justice and the Denver-based Institute for the Advancement of the American Legal System. In a message introducing the project’s "Roadmap for Reform," task force chair Paul C. Saunders and former Colorado Supreme Court Justice Rebecca Love Kourlis, the Institute’s executive director put it simply - the civil justice system is "too expensive, too cumbersome and takes too long."

"As a result, the price of justice is high and access is being compromised. Small to mid-sized cases that should be filed are not filed because they fail a reasonable/cost benefit analysis; cases that are brought often settle principally because of costs, not merits. Civil jury trials are disappearing," they said. Lawyers and judges were urged to "test possible solutions."

At the request of Chief Justice John T. Broderick Jr., we agreed to co-chair a committee to recommend changes in New Hampshire Superior Court rules that would address the issues raised in the national study. The New Hampshire committee Fellows include some of our state’s most respected civil litigators. In our final report [posted on the Judicial Branch and the www.nhbar.org websites], we noted that not all of the national concerns raised by the Task Force are relevant to New Hampshire’s civil justice system. The five pilot rules we recommend are our best effort to "address only those issues which seem to pose genuine problems in the practice of civil litigation in New Hampshire and to recommend only those changes which conform to the principles of integrity, candor, professionalism and flexibility which define that practice."

We believe that five simple changes in Superior Court pleading and discovery rules will make a significant difference in the way cases flow through the civil litigation process in our state courts. These steps will be mandatory for all litigation filed in Strafford and Carroll County Superior Courts. Here is what we recommended in our report:

  • Fact-based pleadings. Notice pleading will be replaced by fact-based pleadings which set forth with particularity all the material facts that are known to the pleading party to establish the pleading party’s claims or defenses. The distinction between "civil" cases, which are currently begun by filing a writ, and "equity cases," which are commenced by filing a "petition" or "bill," will be eliminated. There will be one form of civil action that is initiated by filing a Complaint. An Answer to the Complaint will be required in all cases—the Committee believes this will help narrow the issues in a case sooner rather than later—again reducing the cost to the parties.
  • Issues identification. Pleadings should notify the opposing party and Court of the factual and legal basis for the pleader’s claims or defenses in order to define the issues of fact and law to be adjudicated. They should give the opposing party and the Court sufficient information to determine whether the claim or defense is legally sufficient to merit continued litigation.
  • Automatic . Shortly after commencement of litigation, each party should produce all reasonably available non-privileged, non-work-product documents and things that may be used to support that party’s claims, counterclaims or defenses.
  • Proportional discovery. Discovery in general, and document discovery in particular, should be limited to documents and information that would enable a party to prove or disprove a claim or defense or enable a party to impeach a witness. The Committee believes that the underlying principle in civil litigation should be that the amount of discovery should be in proportion to what is at stake in the case. The objective is to cut down on the expense, and move more efficiently toward a result.
  • Judicial continuity. A single judge should be assigned to each case in the beginning, stay with that case through its termination, and fairly but strictly control a realistic date for completion of discovery and trial.
The automatic disclosure rule is perhaps the most significant change that will occur under the Pilot Rules. These new rules will make the discovery process self-driven – principally the litigant will need to voluntarily provide the other party with the evidence on which it relies to support its claim or defenses. It requires both sides of the case to disclose automatically, without the need for a discovery request from the opposing side, information about witnesses and evidence that the disclosing party possesses and will use to prove its case at trial. The idea is that by requiring such disclosures to be made early on in the case, the need for additional discovery (and the costs that go with it) will be reduced.

Interrogatories and depositions will be limited by number and time, respectively, more so than exists under present rules. The limitation of 25 interrogatories and 20 hours of depositions in total for each side is not intended as a hard and fast rule. Rather, it is intended to apply to the general run of cases, while leaving the trial court with discretion to establish different limits for more complex cases.

A pilot rule on case structuring is designed to force parties to meet and confer early regarding the issues in dispute, the manner in which the case will be conducted, and the discovery that must be produced by each side. When they do so and are able to agree on a schedule, the default position is that there will generally be no initial structuring conference, thus eliminating one proceeding that lawyers frequently complain is not productive. Even if complete agreement is not reached by the parties, structuring conferences generally will be handled telephonically, thus reducing costs.

Finally, one of the pilot rules addresses the rapidly evolving area of electronic discovery – an area that is a particularly significant driver of litigation costs. It specifically incorporates the notion of proportionality by requiring the parties to attempt to agree, or the court to order if agreement fails, limitations on the extent of discovery of electronically stored information (ESI) that is reasonable and appropriate given the complexity and "size" of the case. Once again, the idea is to insure that the discovery "tail" does not end up wagging the litigation "dog" by imposing costs on the parties that are unreasonable given what is at stake.

The pilot project will be launched in Strafford and Carroll counties where Odyssey, the new case management system, is operational, which means we will have the technology necessary to measure the impact of the new rules. The temporary rules will take effect on October 1, 2010 and will apply prospectively only to all new cases filed in those courts after that date. It will apply to lawyers and self-represented litigants as well. Judge Kenneth C. Brown in Strafford and Judge Steven M. Houran in Carroll County are enthusiastic about the new process and they have the full support of their court clerks, Julie Howard and Patricia Lenz. They will play an important role in making the civil justice system in our state work more efficiently and more economically for the citizens of our state.

We also want to thank the Fellows of our Trial Court Advisory Committee for their hard work and commitment to this important project: American College Fellows Michael Callahan, Bruce Felmly (liaison), Martha Van Oot, James Wheat, Jeffrey Osburn, Wilbur Glahn, R. Peter Taylor. Jeanne Herrick, chair of the Committee on Cooperation with the Courts, served as liaison to our Committee.

Our goal, throughout this process has been to refocus our civil justice system on the principle that the purpose of a trial is to do justice for the parties involved. That means a system that is efficient, affordable and accessible to all citizens who turn to the court system to resolve disputes. We believe the changes that we have endorsed will reinforce our commitment to that goal.

Honorable Robert J. Lynn is Chief Justice of the NH Superior Court. Philip R. Waystack is a partner in Waystack Frizzell in Colebrook, and is a Fellow in the American College of Trial Lawyers.

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