Of Football and Business Litigation: Tweaking the Rules for a More Satisfying Contest

shutterstock_114504847It’s a great time of the year, in large part because one of my favorite pastimes is watching football, usually with my teenage son, an avid fan as well as a high school football player. A few weeks ago, when a game was becoming a lopsided contest diminishing its entertainment value, I began to summarize a short list of ways the game could be changed in order to make it more entertaining. For the record, my son was only mildly amused and thinks the game is great just the way it is; he would veto each of my proposals.

Contemplating changes to the rules of the “sport” or contest of litigation is not an uncommon topic of conversation among lawyers, judges, lobbyists, legislatures, business owners and other stakeholders. For the past few decades, millions have been spent on a variety of efforts to do this, ranging from ambitious tort reform to more modest amendments to rules of civil procedure. Just last week, the voters in California failed to pass a proposal to increase the caps on pain and suffering damages in medical malpractice cases, rejecting an attempt to undo some prior tort reforms.

The battle between tort reformers and consumer advocates continues. The Institute for Legal Reform recently published its report, entitled Unprincipled Prosecution: Abuse of Power and Profiteering in the New “Litigation Swarm.”  The authors, affiliates of the U.S. Chamber of Commerce, discuss how legitimate businesses are forced to settle civil and criminal claims due to an explosion of what they call “unprincipled” and “abusive” enforcement actions by class action lawyers and government regulators. It is an interesting read, and I recommend it to anyone who likes to think about this topic from whatever vantage point. The report concludes with five recommendations:

Consumer lawyers of course have their own view on what is working and what is broken in our judicial system and contend that the U.S. Supreme Court’s decisions affirming the enforceability of arbitration agreements and class action waivers is leaving the public without an effective means to address corporate fraud and abuses. While everyone is talking about gridlock in Congress in this post-election season, there is also gridlock between these two camps.

In the meantime, chatting with my son about changing the rules of football and reading about tort reform in the news has prompted me think how changes to the rules of ordinary business litigation could bring about a more desired result. These are typical tort reforms that are not pro-plaintiff or pro-defendant (after all, I represent both) but changes that would make the contest a more efficient process.

So, just for the fun of it, I am now working on two lists—a rough outline of what would happen if someone waved a magic wand and I were simultaneously made the next NFL Commissioner and Chief Justice of the California Supreme Court. (It’s debatable which is the more absurd scenario, but either job would be fun.)

First, let’s tackle the rules of football. Here are three ways some rule changes could make football more exciting:

  1. Narrow the goal posts. Kicking for the point after a goal has become a waste of time because of the high percentage of successful kicks which result in only one extra point. So the solution is simple: bring the goal posts in by a few yards and bring that percentage down from say 95% to 30%. Then, when the kicker is kicking the extra point, there is a legitimate question as to whether it will be successful. Rather than going to the fridge or the concession stands, fans would actually pay attention.
  2. Kick off from the 5-yard line. The other ho-hum event in football is the touchback. Too many kick offs go into the end zone which results in no return and the offense taking the field at the 20-yard line. Why not kick from the 5 yard line so that there are more kick-off returns? Kick-off returns are one of the most exciting events in football and moving the kick-off point further back would result in more kick-off returns.
  3. RPSThe Twelfth Man—For Real. Now it gets interesting! Allow a team losing by more than 21 points in the fourth quarter to play a twelfth player. Nothing is more disappointing than a blowout game in which one team runs up the score. For those of us who don’t play fantasy football and track stats, the game loses its appeal at that point. So why not make the game more interesting by adding either a twelfth play for a blitz on defense or a twelfth receiver on offense. Once the score narrows back to 7 points, the teams go back to 11 players. (The last two games that my Chicago Bears have lost make this rule seem very attractive.)

I’m sure Roger Goodell is rubbing his chin, giving these ideas some serious consideration. No problem, Commissioner. There’s more where that came from.

Now, on a slightly more serious note, here are four ways to make litigation more efficient and less expensive.

  1. Document Production Recommendations by a Third-Party

It is common knowledge that what makes litigation so expensive as well as time consuming is discovery. A great deal of that time and expense relates to document productions. Here is the way discovery normally works. Shortly after a lawsuit is filed, the parties begin crafting document demands as the first wave of discovery. Typically, both sides want to review the other parties’ documents—including emails—before taking depositions or conducting other discovery. There are frequently fights about the scope of discovery: privilege issues, burdens on the responding party versus legitimate need of the requesting party, what is confidential and should be protected through an “attorneys eyes” only agreement and who will pay for expensive e-discovery. Commercial litigators spend enormous amounts of time “meeting and conferring” on these discovery issues. Sometimes there is some horse trading that takes place and the issues are resolved, but too often these disputes end up going to the judge in a motion to compel which effectively halts other discovery like depositions because no one wants to depose someone without all of the documents. So here is the recommendation. Have a third party, jointly compensated by the parties, hear what the case is about and prepare a detailed recommendation addressing the scope of document discovery. No document requests and fights over scope—this is the recommended universe of all documents that will be produced. Questions relating to definitions and search terms can all be addressed in the recommendation. The recommendation would ideally be even-handed such that the document production is truly a two-way street. It would state everything that the parties should do to implement the plan including:

  • which email accounts should be searched;
  • what search terms are to be used;
  • when and where the documents will be produced; and
  • what is beyond the scope of discovery.

The parties could either agree or disagree with the recommendation but either side could ask a Court to enforce it over the objection of the other party. Then the only question is compliance with the proposal. My estimate is that it would cut the cost of discovery in most large commercial cases by 70% or more.

  1. Mandatory Early Neutral Evaluation

shutterstock_80531200This is an idea that did not originate with me but, to my knowledge, is only followed in the Southern District of California and should be the widespread rule rather than the exception. After a complaint and responsive pleading have been filed, the Court should require the parties to appear for a settlement conference conducted by a judicial officer. It’s an early evaluation of the case and the prospects of resolution. The instincts of most litigants at this point time are not to settle. But in many ways, this is an ideal time to settle a case. Consider what I often call the “knowledge/cost continuum” of litigation. In the first few months of litigation, the parties usually know 70% of the facts and have spent 5% of the litigation dollars. Six months later, they may have 85% of the facts but by that time have spent 60% of the litigation dollars. If they still don’t settle, the week before trial, they know 90% of the facts and have spent 90% of the litigation dollars. Surprisingly, this is when many parties start getting serious about settlement. I have settled many cases the Sunday night before a jury was to be selected on Monday morning. As much as this goes against my own economic interest, only the lawyers win at that point. There is not enough money to settle the case because the parties have spent their resources closing the 20% knowledge gap (i.e., going from 70% to 90%). An early neutral evaluation allows the parties to explore settlement early in the case with the help of a mediator.

  1. More Video Court Appearance, Less Waiting Around a Courtroom.

Courtrooms are special places. I am lucky enough to visit courtrooms all over the country and see the unique ways architects and designers have modified the basic concept of bench, jury box, witness stand and counsel table. But apart from this and the somber atmosphere that a courtroom might provide, these facilities are pretty archaic. Here is how it works at least in state court. The doors open and 20 lawyers walk in, give their business card to the clerk, tell the clerk what case they are appearing for and take a seat. Half of these lawyers have a routine case management conference or other matter that will last no more than 10 minutes. The other half have substantive motions or emergency applications that will last 30 minutes to two hours. The bottom line is that, since most of us bill by the hour, the client has to pay for lawyers to sit around hearing other cases for sometimes hours before their case is called. The face time with a judge would be great, if it were not for the significant economic and time constraints involved. Much of this can be accomplished by video conference. In sixteen years of litigation, I have only had one court (in Delaware) allow me to appear for an argument by videoconference. Modern technology and increased Internet speeds have made videoconferencing common place in business. The most effective means would be to allow the presentation to include putting various documents and exhibits on the screen for the judge to consider. GoToMeeting needs to GoToCourt!

  1. Embedded Hyperlinked Documents and PowerPoint Presentations in Place of Briefs.

Courts need to rethink the entire concept of a written document that is read like books or articles have been read for centuries. Briefs are still the way written argument is submitted to courts for consideration.

Briefs are filled with two things: citations to legal authorities (cases, statutes and other documents) and citations to matters in the record (exhibits and deposition testimony). Where legal authorities are cited, the reader—the court or opposing counsel—is required to look up the case. Citations to the record are separately submitted but the reader is required to dig through a voluminous submission, whether it’s electronic or hard copy.

Why not make a brief more like the technologically-friendly presentations that are commonplace outside the courtroom? Citations to cases and other sources can be hyperlinked so that those authorities can be accessed with the click of a mouse. Instead of having to dig out a transcript of the testimony to read what the witness said, the reader could instantly see a video clip of that testimony. The presentation, uploaded to an Internet site, would be enormously more effective in conveying concepts that are often cumbersome and complex.

A few appellate courts have entertained this concepts and vendors stand ready to create this “super brief” for a hefty price. But most clients do not want to pay for this unless they are assured that the reader who counts—the judge—is capable of navigating through such a submission. There is a long way to go as the legal profession is typically catching up with the rest of our modern culture on these technological innovations. Members of the bench and bar are still patting themselves on the back for adjusting to e-filing, moving from paper to PDFs, but that is actually now old technology. It is time the legal profession takes the next bold step in the manner in which complex information is presented.

I am not so naïve as to think that I’ll ever be able to change the rules of either football or litigation. But to a certain extent, those of us who play in the litigation arena have the ability to introduce various efficiency increasing concepts in accomplishing our litigation objectives.

(I would be interested in hearing from any of my readers regarding your own ideas for changes to the either the rules of litigation or the rules of football.)