Discovery and Judicial Efficiency

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After reviewing the module resources, consider the following prompt.

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The process of discovery allows each side of a court case to “discover” a wide array of information relevant to the legal and factual issues in the case. Discovery can include document requests (requests that the other side produce ledgers, tax returns, medical records, or other items related to the case), interrogatories (written questions to be answered by the litigants or witnesses on the other side), and depositions (questioning a litigant or witness under oath in front of a court reporter who transcribes the questions and answers).

Discovery can be time-consuming and expensive; yet, it can also lead to case settlement after the litigants have a chance to consider all of the evidence and more accurately assess their odds of winning at trial.

In your initial post, describe what you think is the impact on judicial efficiency of allowing for wide-reaching, thorough discovery. Defend your position with examples or detailed explanation. Be sure to address the issue of costs as well as court caseloads.

Some of the module resources…..…

Civil litigation begins with the filing of a complaint by a plaintiff. The civil defendant responds by filing an answer. The defendant may also file counterclaims back against the plaintiff. Once the claims are filed, the parties move on to discovery, a formal process of disclosing information relevant to the case. Federal and state rules of civil procedure establish several ways to engage in discovery, including interrogatories (written questions), requests for production of documents, and depositions (in-person questioning under oath). The parties are also required to disclose the names of any witnesses as well as any expert witness reports. While each side is entitled to receive discovery, civil cases are often long delayed by disagreements between the parties as to which information is required to be disclosed and how long it will take to assemble the requested answers and documents. Parties may file motions for sanctions (orders or fines) against the other side for failure to comply with discovery schedules.

Either party may file motions to dismiss the claims or to grant summary judgment, or judgment based on the documents. These motions may drag out the pre-trial process, or they may resolve the case without need to go to trial. Many states require, or strongly recommend, that most civil cases go to mediation to attempt to resolve the case by agreement rather than proceeding to trial. The federal court system sends most civil cases to Early Neutral Evaluation (ENE). This is similar to mediation, but aimed more at letting both sides hear the opinion of a third, neutral professional (usually an attorney with long experience practicing in the same subject matter area as the lawsuit) as to the likely outcomes at trial. While most criminal cases resolve in plea agreements, courts do not have the power to require pre-trial mediation in criminal cases, because criminal defendants have a constitutional right to trial. Judges can order civil cases to mediation or Early Neutral Evaluation, and order that the cost of the mediator or ENE be paid by the parties.

Civil parties also lack the constitutional right to a speedy trial that applies in criminal cases. Civil cases often drag out for many years, while court staff do their earnest best to move the case along to either settlement or trial so that it can be removed from the court’s dockets. Once a civil case resolves by a settlement agreement, or after a civil trial, the matter may proceed to appeal or the winning side may need to take additional steps to collect the judgment or enforce any orders issued.

Civil litigation can move more slowly than criminal litigation, as there is more extensive pretrial discovery. This pre-trial discovery can lead to productive settlement of a case, but can also create time-consuming arguments between the parties requiring court intervention. Lack of constitutional mandates for speedy civil trials means that civil trials can languish on the court dockets far longer than criminal matters. The glacial pace of many civil trials can result in justice being long-delayed to victims of injuries or economic fraud or harm, and can tie up business transactions and economic progress to the detriment of the parties and everyone affected by the lawsuit, including employees and creditors of the parties. As students move forward to the last module in this course and envision the future of judicial administration, they should consider which techniques and technologies might help to overcome the scheduling inertia of civil litigation.

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