Busting Up the Pretrial Industry

While some argue that “[r]eturning to a trial model would be a significant step toward fulfilling the traditional expectations for the federal courts,” that step backward is unlikely to occur. But I agree that fixes are in order, and I offer two. First, we should consider requiring at least some parties to engage in early settlement evaluation—ideally before extensive discovery gets underway—by submitting cases to summary jury trials and imposing consequences on parties who choose to disregard the results. Second, we should allocate a greater percentage of judicial resources to discovery management through the routine appointment of special masters to curtail the discovery free-for-all.

Neither fix is without its costs, but the costs are likely much lower than the costs of perpetuating the pretrial industry that currently drives civil litigation in the United States.