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On Resolving Disputes: A Cravath Partner and Exxon Mobil’s GC (Perspective)

Aug. 18, 2016, 4:38 PM

Editor’s Note: This article is the first installment in a recurring series in which Cravath partner David R. Marriott will write on topics of interest to in-house and outside counsel in partnership with a GC co-author.

Despite the existence of established state and federal court systems, the practice of dueling was still used to resolve disputes in the early history of the United States. In fact, the United States Navy lost nearly as many officers to dueling as it did to combat between 1798 and the Civil War.

Today, we can all acknowledge that dueling does little to further the just resolution of disputes. Yet, as Chief Justice Roberts observed in his 2015 Year-End Report on the Federal Judiciary, we need to be mindful that litigation does not sink to the modern equivalent of dueling —“wasteful clashes over matters that have little to do with achieving a just result.”

The U.S. Federal Court system was established for the “just, speedy and efficient” resolution of disputes. Unfortunately, the willingness of courts to permit broad, expansive discovery combined with the explosion of electronically stored information has led to massive increases in the costs of discovery, and as a result, U.S. courts are now often viewed as a costly and inequitable forum. As the American College of Trial Lawyers noted in a 2009 report, the U.S. “discovery system is broken and our civil justice system is in serious need of repair.”

The U.S. Supreme Court recently approved amendments to the Federal Rules of Civil Procedure designed to begin these repairs. The amendments are intended to reduce discovery costs by narrowing the scope of permissible discovery and providing guidelines on when parties can be penalized for failing to preserve potential evidence. The new rules emphasize the need for better case management, for tailoring discovery to the specific needs of the case, and for increased cooperation among the parties.

The process by which the amendments were developed and enacted illustrates how we as practitioners can make a difference in improving our civil justice system. The amendments were developed and recommended by an Advisory Committee that sought input from litigants, representatives of the plaintiffs’ and defense bars, corporate counsel and others who are actively involved in the federal civil litigation system. A group called Lawyers for Civil Justice coordinated the efforts of those in the business community who testified, offered written commentaries, solicited submissions and provided input to the Advisory Committee. In the end, over 300 companies joined in letters in support of the amendments.

Efforts to make our system more efficient do not have to be part of an organized process. Small changes to the way we practice can make a difference for the better. We can give more careful thought to how much discovery is needed to resolve litigation and which discovery disputes are worth the cost to the litigants and the system. We can demonstrate a willingness to always discuss settlement or compromise early before resources are expended and positions become entrenched. And not every discovery dispute between parties needs to become a battle. As Chief Justice Roberts concluded in his year-end report, “we should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result.”

Our goal should always be a civil resolution, not a duel.