A new model of conflict resolution is gaining ground in our culture. It’s based on the idea of cooperatively restoring equilibrium instead of beating the other guy to death. The proposed amendments to the Federal Rules of Civil Procedure reflect this emerging mindset, starting with the proposed amendment of Rule 1. So does the increasing adoption of alternate dispute resolution, as well as the increasing number of cases that are being settled instead of tried.
However, there’s an entrenched concept that needs to be adjusted: the lawyer as gladiator. Nowhere is this need more pressing than in ediscovery. As many have noted, the cost of ediscovery is effectively closing the courtroom doors to all but the heaviest hitters. Marginally meritorious cases get settled for more than they’re worth and truly meritorious cases don’t get filed, or they get dropped, because of the cost of ediscovery.
Merely exhorting litigators to cooperate in ediscovery won’t rebalance our justice system. The possibility of sanctions has some effect but requires satellite litigation that further increases the transaction costs of resolving disputes.
What we need is some new social engineering. We need to implement some sort of system that rewards cooperation. We need to think creatively and concretely about what structures and mechanisms could accomplish that.
Here’s one proposal: when opposing counsel find an opportunity for a win-win strategy, they could enhance their professional reputations by jointly publishing a short description of that strategy in a public forum. The possibility of a public endorsement from the presiding judge would greatly sweeten the pot.
Other lawyers, judges, and litigants could participate in this forum, suggesting and discussing modifications, enhancements, annotations, extensions, limitations, and potential pitfalls, thereby building out a perpetually-growing corpus of knowledge about efficient litigation.
Several people have now suggested that I extend this post to address specific elaborations and variations on the proposal, and I expect to do so. The larger point is that trying to deter uncooperativeness isn’t enough. We can and need to proactively envision, specify, and implement social, psychological, and economic structures that will reward cooperation in ediscovery and in litigation generally.