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National Association of Attorney Generals 3/30/92 [OA 7570] [2]
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National Association of Attorney Generals 3/30/92 [OA 7570] [2]
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Records of the White House Office of Speechwriting (George H. W. Bush Administration)
Speech Backup Chronological Files
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Originally Processed With FOIA(s):
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S
S
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MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin:
Speechwriting, White House Office of
Series:
Speech File Backup Files
Subseries:
Chron File, 1989-1993
OA/ID Number:
13805
Folder ID Number:
13805-009
Folder Title:
National Association of Attorney Generals 3/30/92 [OA 7570] [2]
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G
26
22
4
2
(Crouse/Nix)
March 26, 1992
Draft Seven
blk-fam7
PRESIDENTIAL REMARKS:
COALITION FOR THE RESTORATION
OF THE BLACK FAMILY IN SOCIETY
ROOM 450 EVENT
THURSDAY, MARCH 26, 1992
3:00 P.M.
Thank you for that wonderful welcome. Meeting with you is always
a memorable event. The kinship we feel grows out of the common values
we share. As President, I've made it my mission to preserve three
significant legacies: peace in the world, productive jobs for all
Americans -- and strong families. I think Barbara said it best.
"What goes on at the White House is not nearly as important as what
goes on in your house."
I don't have to remind this group of deeply committed leaders of
the disturbing trends we are bucking -- your hearts have already been
stirred by the tragic forces which are overwhelming the family in
American society. Let me put it this way -- if our government had set
out determined to destroy the family, it couldn't have done greater
damage than what we see today. Unwittingly, our welfare programs --
which were meant to provide temporary support -- have, instead,
undermined responsibility, eroded dignity and robbed people of
control.
No group in America is more aware of the necessity for character-
based solutions and community-wide efforts than this Coalition. I
want to assure you of my commitment to those same guiding principles.
I want to assure you of my confidence in our partnership and my
support of your leadership on the front-lines of this battle for our
nation's families.
2
When we look to the forces for change -- the family, community
and church -- we can't forget our schools. We've got to create new
incentives for excellence -- like school choice. We have got to give
parents the power to choose which schools serve their children best
-- public, private or religious.
We have shown that when we work together we can get the job done.
Together, we placed Clarence Thomas on the Supreme Court. Together,
we have seen major walls come tumbling down because we yearn for what
is just and we are determined to do what is right.
Now I want your help on another issue of vital importance to us
all. Last week, Congress tried to push through a massive tax increase
-- the kind that would have stopped our economic recovery dead in its
tracks. I told Congress I'd veto that bill -- and I did. Yesterday,
House Democrats tried to over-ride my veto. You may not have seen
much coverage of this, but what was meant to be a show. of strength
simply put a spotlight on disarray. The Democratic leadership
couldn't muster enough votes for simple majority. The veto stands.
That is almost unheard of --- that has happened only twice in the last
60 years. And I want to thank every member of Congress -- from both
parties -- who had the courage of their convictions to say no to more
taxes on the American family.
That's a beginning --- but it's not enough. If Congress really
wants to get this economy moving, create jobs and revive hope, then I
say: pass my plan -- put America back to work.
But we know we can't wait for Congress to see the light. So I've
asked Republican leaders -- beginning today -- I've asked Senator John
McCain and Representative Harris Fawell to formally introduce our
requests for rescissions: 68 federal projects we don't need, and I
can't ask the American taxpayer to pay for. That gives the Congress
3
25 days, to uphold the cuts I want to make -- or to vote in broad
daylight to forget about the deficit and keep the pork.
This week the leaders who control Capitol Hill did something
else: they began a new effort to remove the only defense the taxpayer
has against excessive government spending. We will see Congress
NEW
10
resort to all sorts of parliamentary gimmicks, but we owe it to every
P
American family -- everyone who works hard, and struggles to make ends
meet -- to hold the line on government spending. And we will.
What we're seeing today is the beginning of the battle -- between
those who want to change things, and those who want to stick with the
status quo. Let the defenders of the status quo be warned: I stand
for change.
America will be restored -- not through government
interference, empty slogans and symbolic gestures -- but by strong,
clear voices of reason and consistent acts of responsibility. America
will be restored -- not by outsiders coming in with a so-called
"better idea" -- but by people who are passionate about reclaiming
their streets and rescuing their children from the forces that would
destroy them. America will be restored -- not by political rhetoric
-- but by people like you -- teachers and pastors, neighbors and
friends who say, "I will answer the crying needs around me. I will do
I
whatever it takes. I will pay the price of sacrifice and pain."
took out
Today, I want you to know that your President is here as a full
partner with you in caring and concern. Your President is committed
to complete restoration of family -- until once again our families --
all our American families -- are vital and strong havens for those who
will follow after us. May God bless our partnership and our
endeavors.
problems we see today are sad proof that the old approaches are
continuing to produce new failures.
The time has come for a change -- for of far-reaching,
fundamental reform -- not just in government, but across the
board. That's why I've proposed school choice reform: so that
choices about education can be made from the kitchen table,
halls of
rather than the government desk. I've proposed health care
reform -- to improve access for those who need it most. Legal
reform -- so that Americans can start solving their problems face
to face -- instead of lawyer to lawyer. If The kind of change I'm
talking about won't be easy. But if our kids deserve a better
suppy,
future, our conscience must demánd a bigger change.
1
know.
Help!
"
end with: Battle lines tanguage.
statugus V. change.
(Grossman/Smith)
March 25, 1992
Draft One
NAAG
PRESIDENTIAL REMARKS:
NATIONAL ASSOCIATION OF
ATTORNEY GENERALS
ROOSEVELT ROOM
MONDAY, MARCH 30, 1992
10:15 A.M.
Ken Eikenberry, Jeffrey Amestoy, welcome to the White House.
sheets
And to all the State's Attorneys General -- welcome. Attorney
General Bill Barr, thanks for that introduction and thank you for
the terrific job you're doing.
Bill has his forces moving on several fronts -- from tort
reform to relief of prison overcrowding to Weed and Seed. These
are crucial missions \ I am determined to see them achieved and
nothing will stand in our way.
The efforts of our Justice Department help shape the kind of
legacy we leave for future generations. They must inherit a
society that is safe, and sane -- and just. I've also spoken of
other legacies: meaningful jobs a world at peace and strong,
has
behind have
healthy families. The American heritage which I describe is one
where children will walk to school without fear of attack; where
whose
innocent People Lah & the comn store gettus caught in the crossitue;
families can have dinner undisturbed by gunfire; where the
Honthin porch
message is clear -- when it comes to the law: if you're going to
take liberties, you're going to lose your own.
But we can't pass this legacy on to our children tomorrow,
For
3
unless we start passing tough crime legislation today.
yes
receive
ve
called on Congress to pass my Crime Bill. I want a bill I can
sign, one that gives real teeth to law enforcement -- because
one that makes much. if clear,
too
we Lre not going to take a bite out of crime by nibbling around
the edges
Law for or der was more thous just safe sheets,
We're also going after the public corruption -- the rot that
eats away at our institutions -- and our trust. Over the past
three years, this administration has moved aggressively to hunt
down corruption and stop it dead in its tracks. For the record:
in '89 and '90 alone, the Department secured over 2,200
convictions -- 2,200 -- in public corruption cases. Judges,
legislators and law enforcement officials -- part-time crooks and
full-time fakes -- no one is immune.
This kind of crime does society real harm -- because these
swindlers aren't satisfied with merely "making crime pay" -- they
make the taxpayer pick up the tab. Millions and millions of
hard-earned tax dollars are disappearing from public treasuries
every year -- and showing up in corruption's back pocket. This
is money that could otherwise be building roads or balancing
budgets.
Think about it: corruption corrodes the quality of services
going to those who need them most -- the hungry we want to feed
the children we want to teach \ the people we want to empower.
Corrupt officials aren't just raiding the public purse -- they're
polluting the public trust.
You see, the problem is greater than a few individuals who
stopped caring. The problem is a system that has stopped
working. The old bureaucratic system of big government has
grinded to a halt -- it's not accountable, it's not effective,
it's not efficient, it's not even compassionate. The lingering
NAAGNOT
the system is no longer working
--the days of machine politics are over
the old free-wheeling system has skidded off track, shot
through with the rust of cynicism and corruption.
--family sitting at their dinner table watching the evening news
--the system is not accountable, not effective, not efficient,
nor even compassionate.
there are two paths before us. One is reform. The other
protects the status quo.
they make crime pay -- then make the taxpayer pick up the tab.
--riddled with abuse
--these are serious problems and they are getting immediate
attention. But there's something else.
-swindless -polluts
THE WHITE HOUSE
WASHINGTON
DATE: 3-25
TO:
Jennifer Grossman
FROM: DAVID J. BEIGHTOL
Special Assistant to the President for
Intergovernmental Affairs
Room 160, OEOB, x7170
FYI
Appropriate Action
Let's Discuss
Per Our Conversation
Per Your Request
Please Return
COMMENTS:
THE NEW YORK TIMES METRO THURSDAY, MARCH
CONNECTICUT
19,192
New Haven
Is Target
Of Inquiry
Documents Seized
In Raid at City Hall
CITY
By CONSTANCE L. HAYS
Special to The New York Times
NEW. HAVEN, March 18 Fed-
eral investigators swooped down on
this city's municipal offices this
week, taking away boxes of docu-
ments that may figure in a fraud
inquiry focusing on the rehabilitation
of a rundown commercial area.
It is the third Federal investigation
of a major Connecticut city's govern-
ment in three years, and some here
are wondering why the state seems
suddenly to be a favorite target for
United States attorneys.
"Until a couple of years ago, a
Federal municipal government cor-
ruption investigation was unheard
of, said Hugh Keefe, a New Haven
lawyer who is defending the former
Mayor of Waterbury, Joseph J. Santo-
pietro, against Federal corruption
charges in a trial in Bridgeport. Mr.
Stephen Castagneto for The New York Times
Keefe also defended the former May-
Federal officials have begun an investigation into a rehabilitation project in New Haven. Federal money was
or of Danbury, James E. Dyer, in a
1990 Federal corruption case in which
used to help businesses move out of the Ninth Square neighborhood, above, so it could be rebuilt.
Mr. Dyer was convicted of filing a
false income-tax return, but acquit-
ted of other tax charges as well as
3 investigations in 3
the Women and Minority Business
and Development programs from
All work her 50-employee company
racketeering and extortion.
years of Connecticut
January 1987 to December 1989. It
did for the city, she said, was award-
also demands documents "relating in
ed because the company made the
Cases Are a Priority
lowest bids. Most of the projects were
cities by the U.S.
any way. to services performed or
for street improvements, such as in-
An expert with the American Bar
offered to be performed" by a local
stalling benches and lights and re-
Association in Washington said the
company called Fucci Construction,
also between January 1987 and De-
placing asphalt with brick paving.
recent rash of Connecticut cases may
John J. Sennett, a spokesman for
reflect a particular emphasis by the
Haven case, since the United States
cember 1989.
United States Attorney, Albert S. Da-
the F.B.I. in New Haven, said, "No
Attorney's office and the Federal Bu-
browski, but it also shows that such
reau of Investigation refused to com-
Daniels Pledges His Help
specific individual or individuals are
being targeted in this investigation,"
cases are a priority for the Depart-
ment on it. They are conducting the
All documents requested predate
ment of Justice.
the term of the current Mayor, John
and added, "we are only pursuing
investigation along with the Federal
"Connecticut has no monopoly on
Department of Housing and Urban
C. Daniels, who took office in 1990.
allegations of wrongdoing, and the
public corruption," said the expert,
Efforts today to reach his predeces-
investigation will take us where it
Development.
takes us."
Tom=Smith, the associate director of
A subpoena served on Tuesday at
sor, Biagio DiLieto, who is also a
former police chief here, were unsuc-
A state investigation of a similar
the association's criminal justice sec-
City Hall demanded that officials
cessful.
city-financed program resulted in the
tion. "There has been a Federal pres-
turn over documents related to a
ence in prosecuting local political cor-
In a statement issued Tuesday, Mr.
arrests of 11 people last year. That
business-relocation program that ran
ruption; for many years that has
Daniels pledged his "continued coop-
program, known as the Neighborhood
from 1987 to this year. Under the
reached high levels and low levels.
program, Federal money was used to
eration" and added; "It is my sincere
Commercial Revitalization Program,
In 1989, 1,349 public officials. were
help business owners move from the
hope that this issue, as painful and
repaid people for up to $15,000 in
dilapidated Ninth Square neighbor-
difficult as it is, will be brought swift-
renovation work on properties in des-
indicted nationwide and 1,149 of them
ly and equitably to a close."
ignated neighborhoods around the
convicted, said Doug Tillett, a spokes-
hood so that it could be rebuilt as a
city.
complex of apartments and stores.
Nancy A. Fucci, the owner of Fucci
man for the Justice Department.
The subpoena, dated March 12, also
Construction, said, "I've been in con-
Investigators charged that it be-
Each case "involved abuse of the
demands applications and requests
tact with the U.S. Attorney's office
came riddled with false applications
public trust, he said.
made to the city for loans from the
and I've indicated that we're willing
for reimbursement from people ap-
Details remain sketchy in the New
Small Business Administration and
to cooperate in any way necessary to
plying on behalf of properties they did
assist them in this investigation."
not own or inflating claims of how
much they spent on renovations.
ERSEY
THE WHITE HOUSE
WASHINGTON
March 24, 1992
MEMORANDUM FOR RON KAUFMAN
Deputy Assistant to the President
and Director of Political Affairs
FROM:
PB
DAVID J. BEIGHTOL
Special Assistant to the President
for Intergovernmental Affairs
SUBJECT:
NAAG MEETING - MARCH 30, 1992
Next Monday, we have the Attorneys General in for a meeting
with Sam Skinner, Bill Barr and the President in the Roosevelt
Room. The tentative schedule includes:
10:00
Sam Skinner begins meeting
10:15
President arrives, spends 15 minutes
(informal talking points being developed)
[possibility of press pool in room while President
is in attendance.]
10:30
President departs
0.30
10:30
Attorney General Barr remarks
251015
Q & A
11:00
Vice President Quayle hosts informal gathering
[OEOB office]
11:45
Stake-out
12:30
Bus returns to the Hall of States
Ken Eikenberry (R-WA) is the current President of the
organization. I will be on a conference call with him and some
of Barr's people tomorrow (1:30 pm) to discuss the White House
events. As you know, Eikenberry is running for Governor. Please
let me know if you have any concern/comments/wishes regarding the
aforementioned.
I have attached the NAAG conference agenda for your
information.
CC: Sherrie Rollins
Deb Anderson
03.23.92
17:49
202 514 2501
DOJ-OLS
-
NATIONAL ASSOCIATION OF ATTORNEYS GENERAL
3/13/92
1992 SPRING MEETING
Washington, D.C.
March 29-31, 1992
(all meetings are in the Hall of the States unless otherwise noted)
TENTATIVE AGENDA FOR ATTORNEYS GENERAL AND STAFF
SUNDAY, MARCH 29
11:00 a.m. - 12:45 p.m.
Criminal Law Committee Meeting (Room 237/239)
11:00 a.m.- 11:10 a.m.
Opening Remarks
Attorney General Ernest D. Preate, Jr.
11:10 a.m. - 11:45 am.
Operation Weed and Seed (Roundtable)
Attorney General Ernest D. Preate, Jr., Moderator
11:45 a.m.- 11:55 a.m.
Crime Bill Update
11:55 am. 12:25 p.m.
Precursors and Drug Diversion: Role of DEA
Robert Bonner, Administrator
Drug Enforcement Administration
12:25 p.m. - 12:45 p.m.
Roundtable on State Initiatives
1:00 p.m. - 1:45 p.m.
Executive Committee Meeting (Room 283/285)
1:00 p.m. . 1:20 p.m.
Call to Order and Report of the President-elect
Attorney General Jeffrey L. Amestoy
Report of the Budget Committee
Report of the Site Selection Committee
1:20 p.m. - 1:30 p.m.
Update on 1992 Summer Meeting in Pittsburgh
Attorney General Ernest D. Preate, Jr.
1:30 p.m. . 1:45 p.m.
Report of the Executive Director
Christine T. Milliken
Supreme Court Advocacy
1
03/23/92
17:49
202 514 2504
DUJ-ULS
SUNDAY, MARCH 29 (continued)
2:00 p.m. - 5:30 p.m.
OPENING PLENARY SESSION (Room 283/285)
2:00 p.m. - 2:15 p.m.
Report of the President and Announcements
Attorney General Ken Elkenberry
2:15 p.m. - 3:15 p.m.
Attorney General Roundtable on New State
Legislative Issues
3:15 p.m. - 3:30 p.m.
Break
3:30 p.m. - 4:30 p.m.
State Issues in Health Care Reform
Overview
Ray Scheppach, Director, National
Governor's Association
Issues for Attorneys General
Attorney General Frankie Sue Del Papa,
NAAG Insurance Committee Chair
4:30 p.m. - 5:30 p.m.
Civil Justice Reform
John Payton, D.C. Corporation Counsel
Attorney General Grant Woods
6:00 p.m. - 8:00 p.m.
Attorneys General Emeritus Reception
(Washington Court Hotel, 525 New Jersey Avenue, N.W.,
walking distance from the Hall of the States)
2
MONDAY, MARCH 30
8:00 a.m. - 9:15 a.m.
Attorney General Breakfast/Roundtable and Briefing
(La Colline)
9:15 a.m.
Board Bus for the White House
10:00 a.m. - 11:00 a.m.
WHITE HOUSE MEETING
President Bush; Chief of Staff Samuel K. Skinner; and
Attorney General William P. Barr
11:00 a.m. - 11:45 a.m.
Meeting with Vice President Quayle
(Old Executive Office Building)
11:45 a.m.
Press Availability
12:30 p.m.
Board Bus to return to the Hall of the States
12:45 p.m. - 1:30 p.m.
Executive Session Lunch (Room 283/285).
1:00 p.m. - 4:00 p.m.
Soundbite Taping for NAAG/FTC/FDA Weight-Loss
Consumer Education Campaign (Room 233/235)
(will take only 5 minutes, stop by at your convenience)
1:30 p.m. or 3:00 p.m.
Telephone/Office Break and Informal Meetings
2:00 p.m. - 3:00 p.m.
Management and Leadership Committee Meeting
(Room 283/285)
2:00 p.m. - 2:30 p.m.
Planning for the December 1992 Issues Management
Retreat Meeting
2:30 p.m. - 3:00 p.m.
NAAG Standards of Excellence Proposal
3:00 p.m. - 4:30 p.m.
DEPARTMENT OF JUSTICE MEETING (Room 283/285)
3:00 p.m. - 3:30 p.m.
George J. Terwilliger III, Acting Deputy Attorney General
Robert S. Mueller III, Assistant Attorney General for
Criminal Justice
3:30 p.m. - 4:00 p.m.
Kenneth W. Starr, Solicitor General
4:00 p.m. - 4:30 p.m.
Wayne Budd, Acting Associate Attorney General (tentarive)
John R Dunne, Assistant Attorney General for Civil Rights
4:40 p.m.
Board Bus for the Supreme Court
5:00 p.m. - 5:30 p.m.
Meeting with Justice Anthony M. Kennedy
(West Conference Room)
5:30 p.m. - 7:00 p.m.
Annual Supreme Court Reception (Lower Great Hall)
3
03/23/92
17:50
202 514 2504
DOJ-OLS
- TUESDAY, MARCH 31
8:00 2.Ш. - 9:00 a.m.
FDA Working Group (Room 235)
7:30 a.m. - 8:45 a.m.
Gaming Issues Roundtable (La Colline)
Attorney General James E. Doyle, Moderator
9:00 a.m. * 12:00 Noon
PLENARY SESSION (Room 283/285)
9:00 a.m. - 10:00 a.m.
FDA Commissioner David A. Kessler
10:00 a.m. - 11:00 a.m.
To Be Announced
11:00 a.m. - 11:30 a.m.
Resolutions and Reports
11:30 a.m. - 12:00 Noon
Representative Al Swift (D-WA), Chair, Subcommittee
on Transportation and Hazardous Materials
12:00 Noon
Recess
12:30 p.m. - 3:00 p.m.
Environment and Energy Committee Meeting (Room 235)
12:30 p.m. - 12:40 p.m.
Opening Remarks
Attorney General Hubert H. Humphrey m, Chair
12:40 p.m. - 1:25 p.m.
Panel Discussion:
The Economics of Pollution Prevention and Control
Attorney General Gale A. Norton; EPA Deputy
Administrator F. Henry Habicht II; and
Jerry W. Ross, Managing Environmental Counsel,
Chevron Corporation Law Department
1:25 p.m. - 1:45 p.m.
Attorney General Roundtable on Market Incentives,
Voluntary Compliance and Pollution Prevention
1:45 p.m. - 2:10 p.m.
EPA's Enforcement Priorities for the 1990's
EPA Assistant Administrator Herbert H. Taxe, Jr.
2:10 p.m. 2:35 p.m.
The Federal Government's Position on Takings
under the Fifth Amendment
Acting Assistant Attorney General Barry M. Hartman
2:35 p.m. - 3:00 p.m.
Committee Business and Attorney General Roundtable
12:30 p.m. - 2:30 p.m.
Executive Working Group on Antitrust Meeting (Room 233)
2:30 p.m. 3:15 p.m.
FTC Working Group (Room 237)
4
WEDNESDAY, APRIL 1
8:30 a.m. - 12:00'Noon
Conference of Western Attorneys General Meeting
(Room 235)
8:30 2.m.
Continental Breakfast
9:15 a.m.
Depart for Meetings with Federal Officials
9:30 a.m. - 12:00 Noon
Meetings with Manuel Lujan Jr., Secretary of the
Interior; Thomas L. Sansonetti, Solicitor for
Department of Interior; and Officials from FERC
6
SENT BY:Xerox Telecopier 7020 3-25-92 :10:38AM ;
4562983-
6218;# 1
FIRE 20 92
9:49 NO.001 P.02
INSERT FOR N.A.A.G. SPEECH
-2 pages
-PMK,MK
(Language about cooperation) ... one or the most important
tasks of this new are of cooperation among federal, state and local
law enforcemen agencies is the continued priority to investigate
and prosecute public corruption.
My Administration has moved aggressively over the past three
years to root out corruption at all levels of government. The
Department of Justice has been vigilant in investigating and
presecuting public officials -- both elected and appointed -- who
violate the trust placed in them by the American people.
This record is excellent, During 1989 and 1990, the
Department of Justice secured over 2,200 convictions in public
corruption CREOS. slightly more than half of those convicted were
federal officials) one-quarter were state and local officials, the
rent ware others involved in corruption. Defendants included
judges, legislatore and law enforcement officials,
What is perhaps the most overlooked aspect of public
corruption is its price tag. Untold millions of hard-earned tax
dollare are being siphoned out of the public treasuries every year
by corrupt officials -- money that could otherwise be used to help
those who need it most. Think about it: every time orders are
ralsely inflated because of a county kick-back scheme ... or a
federal contract is padded to cover a bribe ... or as pay-off is
made tor inside information from a state official ... the result is
lost public services, higher prices for consumers, and lost
revenues to the government. And there is also an even larger
casualty: the basic civil right of all Americans to have honest
government that works for them.
...
NAAG David Beighter
7170
160 1:00 contact PM sp
Ban
will intro POTUS
Ken Elkaberg Presof of
Shenie Nolan at
Justice
-- DRAFT --
NAAG TALKING POINTS
-
Ken (Eikenberry), Jeffrey (Amestoy), welcome to the White
House.
-
And to all the State's Attorneys General -- welcome.
-
I see you've just heard from my Chief of Staff Sam Skinner
on
-
I've been sharing my five-part strategy for reform with a
lot of folks recently, and one very important part of that
will be of specific interest to you --
-
I'm pushing for fundamental legal reform to put a stop to
the epidemic of lawsuits in this country.
-
And in that regard, I understand that you will be meeting
with Vice President Quayle a little later today --
-
I'm sure he'll be sharing some of his tort reform
initiatives with you then.
-
I also believe you will be hearing from Attorney General
Barr when I'm finished here.
-
Let me just tell you that I am thrilled to have Bill on
board and am very excited about the initiatives he's putting
in place.
-
I know he's been working hard on several fronts:
-
The Weed and Seed program is moving forward; and I know you
will all be interested in his plans to help state and local
governments deal with prison overcrowding.
-
Ken, why don't I stop here and see what you have on your
minds.
THE WHITE HOUSE
3/23/92
Jannifer Thanks for your note- ad thanks expecially
for all help ma short time frame.
I your enjoyed work with you (brietly!) on this.
Hope Q wasn't too intense
Come visit
Thanks organ 1
Grady
the WHITE house
WASHINGTON
Jannifer Grossman
personal Speech writing /Rm 122
THE WHITE HOUSE
WASHINGTON
March 25, 1992
MEMORANDUM FOR:
David Demarest
Dan McGroarty
Speechwriters
Researchers
FROM:
Janice Shaw Crouse June
RE:
Greek Independence Day Ceremony Speech
SETTING, AUDIENCE, ACKNOWLEDGEMENTS:
Today was a beautiful Spring day ideal for a Rose
Garden event.
The audience was obviously thrilled to be there and the
event was clearly meaningful for them. There was
considerable camaraderie among the audience before and
after the ceremony.
The President arrived with Archbishop Iakavos. He was
very upbeat in his opening remarks. He gave a very warm
welcome to the group and talked about the beautiful day.
In his off-the-cuff acknowledgements, the President said
the Archbishop had gained his "most sincere respect."
The audience applauded. He said that the Archbishop was
a "true, spiritual leader who has earned enormous
respect." Applause again.
The President saluted the Prime Minister and spoke
glowingly of his personal respect and friendship with Mr.
Mitsotakis.
It was most impressive to see the Archbishop standing
with dignified bearing and inherent authority, holding a
gold staff while the President signed the Proclamation.
At the end of the signing, the audience stood and
applauded.
After the ceremony, the President came into the crowd to
shake hands with many in the audience. Again, it was
obvious that the audience was made up of long-standing
friends and acquaintances.
PRESIDENT'S DELIVERY:
President Bush's tone was sincere with appropriate
emphasis to stress the meaning, for instance, on the line
-- "The U.S. and Greece are the firmest of friends and
the strongest of allies." (Applause)
Throughout the speech, President Bush had a casual, firm
tone of voice with strong delivery (in spite of sounding
a bit hoarse).
I was surprised that the only line the President rushed
through was the one about "our ideals and values" being
preserved at "high cost -- the valor and sacrifice of our
nation's finest young men and women." (Perhaps he was
self-conscious about press criticism of too much Desert
Storm?) But he came back strong on the next line about
Greek heritage being American heritage.
The rest of the speech -- where he spoke of being moved
by the importance of Independence Days and not letting
our children forget -- were delivered with great feeling!
He stressed the line about telling the "old stories in
order to preserve that which we value so highly."
Special Note: The President looked tan and rested, but
he squinted after stepping into the sunlight which made
him look somewhat worried.
CONTENT:
During the "preserving traditions" section, I was
watching the audience and saw many heads nod approval
when he talked about the value that Greek-Americans place
on "family and tradition."
President Bush seemed to really get into the paragraph
about passing values along from one generation to the
next; about that not being a luxury, but the social
capital necessary for greatness -- most especially for a
country to be good.
Toward the end of the short speech, President Bush
recognized that this year is Archbishop Iakovos' 33rd
year as Archbishop of the Americas. The Archbishop
beamed and the audience applauded.
The most enthusiastic applause of the day came when
President Bush spoke of continuing to support a fair and
permanent settlement to the Cyprus issue.
2
After the speech, I overheard an audience member comment
that the President's remarks had "touched all the bases
that are important to Greek-Americans."
ROUGH SPOTS:
President Bush seemed to have a bit of trouble with the
phrase "necessary underpinning for continued democracy
and freedom."
The President departed from the text in describing the
Archbishop's benediction at the 1988 Convention -- he
referred to the benediction as "bipartisan" (seemed to
be trying to insert a bit of humor, but the Archbishop
and the audience remained solemn).
As the President began reading the quote from the
benediction, the wind whipped the American flag up around
the headpiece of the Archbishop. Helen Thomas spoke out
loud enough for all around her to hear, "Look at that
flag!" And, she laughed. This produced some stirring in
the audience which made the President somewhat
uncomfortable, but the episode passed quickly and he
moved on.
The President stumbled through the Congressional
greetings and seemed ill at ease. (When Specter's name
was given, Helen Thomas proclaimed "He's not Greek!)
President Bush settled down after he moved into the text
of the speech and read it quite comfortably.
Prior to the President's appearance, the black table
cover, on which the Proclamation would be signed, kept
blowing away to the consternation of press and advance
personnel. Finally, it was taken off, folded and put
away.
TOUCHING MOMENT:
In the Archbishop's response, he noted -- with a catch in
his voice -- that the President had acknowledged his 33rd
anniversary as Archbishop to the Americas. Since I was
shamelessly evesdropping after the speech, I overheard two
members of the Greek press (definitely not cynical or blase)
standing close to me talking about the President's "stroke of
genius" in recognizing the Archbishop's anniversary.
3
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
March 30, 1992
REMARKS BY THE PRESIDENT
IN ADDRESS TO THE NATION'S ATTORNEYS GENERAL
The Roosevelt Room
10:36 A.M. EST
THE PRESIDENT: Well, may I salute Ken Eikenberry and
Jeff Amestoy and all the state attorney generals. And salute
also -- whoops, there he is down there -- our own Bill Barr, who I
think is doing an outstanding job. And I know he's working closely
with everybody in this room.
Bill has his forces moving out on several fronts, from
tort reform to relief of prison overcrowding. We've also started
what we call the weed and seed initiative. Our plan to get the
roots, rip them out of the inner-city violence and then plant seeds
of hope with more educational opportunity, with more job training,
with a new approach to health care. And then we are going to keep
hammering away on the need for enterprise zones.
This plan joins federal, state and local forces to go
after and to take back our hardest-hit neighborhoods. They're
crucial missions, and I am determined to see them achieved and let
nothing stand in the way. The efforts of the Justice Department
help shape the kind of legacy that we leave for future generations.
And our children must inherit a society that is safe, is sane and
just.
And I've also spoken of other meaningful legacies like
jobs and a world at peace and certainly strong families. The
American heritage which I describe is one where children can sit on
their porch without the fear of getting caught in an ugly cross fire,
where decent people don't have to hide behind locked doors while
gangs roam the streets. Where the message is clear -- when it comes
to the law if you're going to take liberties you're going to lose
your own, you're going to pay.
We cannot pass this legacy onto our children tomorrow
unless we start going after tough crime legislation today. And for
three years running, we have called on the Congress to pass a tough
crime bill. We've pushed hard, many of you have been at our side in
trying to get something done. I want a bill that won't tie the hands
of the honest cops in trying to get their jobs done; one that shows
less sympathy for the criminals and certainly more for the victims of
crime. And most of all, I want to get a crime bill that I can sign.
But law and order mean more than just safe streets and
bigger prisons. Reforming the system also means going after public
corruption in our cities and our states, the rot that eats away at
our institutions and at our trust. Over the past three years this
administration has moved aggressively to hunt down corruption and
stop it dead in its tracks.
For the record, in '89 and '90 alone the Department
secured over 2200 convictions -- 2200 -- in public corruption cases.
Judges, legislators and law enforcement officials, part-time crooks,
full-time fakes, nobody is immune. And this kind of crime does
society real harm because these swindlers aren't satisfied merely
with making crime pay, they stick the taxpayer with the tab. And
MORE
- 2 -
millions and millions of hard-earned tax dollars are disappearing
from public treasuries every single year and showing up in
corruption's back pocket. And this is money that could be building
roads or balancing budgets. I am preaching to the choir on this
subject because you all are out there on the cutting edge, on the
front line all the time trying to do something about the problem.
But the problem is greater than a few individuals who
stopped caring -- the problem is a system that has stopped working.
And the old bureaucratic system of big government has ground to a
halt. And it's not accountable; it is not effective; and it is not
efficient -- it's not even compassionate. And the chronic problems
we see today are sad proof that the old approaches are producing new
failures.
So in this election year, it's understandable, I'm sure,
that we hear a lot of talk about change. You all have been fighting
for change -- I think I have. And, yes, the time has come for change
-- far-reaching, fundamental reform. That's the kind of change that
this country needs in the fighting crime field. Not just in fighting
crime, incidentally, and not just in government, but all across the
board.
And that's why I've -- proposing school choice
reform -- just finished almost an hour meeting with our Secretary of
Education on that one. So the choices about education can be made
from the kitchen table, not from the halls of bureaucracy. Where
it's been tried, it has been effective in improving the schools that
are not chosen as well as those that are.
And I've proposed a health care reform to improve access
for those who need it the most. Legal reform, we need your help on.
We've got good proposals up there on Capitol Hill. Our legal reform
is shaped so that Americans can start solving their problems face to
face instead of lawyer to lawyer. I'm amazed at the number -- the
great increase in lawsuits that is really putting a damper on so many
aspects in our society.
The kind of change that I'm describing is hard. It has
its enemies, and the battle lines have been drawn. The allies have
changed versus the defenders of the status quo. So I want to make it
very clear which side I'm on; I know which side many of you are on.
So let the cynics say that this is only a fight for the
next election. We know it's a battle for the next generation. And
I'm very glad you all are here. And what we'll do is go over here,
and I'd love to have suggestions from you as to how we might doing
our job better down here. And, of course, I'd be glad to take
questions and if they re technical, I'll kick them off to perhaps the
most able Attorney General a guy could hope to have with him.
(Applause.)
Thank you all very much.
END
10:43 A.M. EST
STATE
Access To Justice
Act of 1992
Access to Justice Act of 1992
A BILL
To provide greater access to civil justice by reducing costs
and delay and for other purposes.
1
Be it enacted by the Senate and House of Representatives of
2 the United States of America in Congress assembled, That this Act
3 may be cited as the "Access to Justice Act of 1992".
4
5 SEC. 101. FEDERAL DIVERSITY JURISDICTION; SUM IN
6 CONTROVERSY.
7
Section 1332 of Title 28, United States Code, is amended by
8 redesignating subsection (d) as subsection (g) and inserting
9 after subsection (c) the following new subsections:
10
"(d) In determining whether a matter in controversy exceeds
11
the sum or value of $50,000, the amount of damages for pain
12
and suffering or mental anguish, punitive or exemplary
13
damages, and attorney's fees or costs shall not be included.
14
" (e) On February 1 of each year, the monetary amounts
15
referred to in subsections (a), (b), and (d) shall each be
16
adjusted to the nearest thousand dollars to reflect the
17
change in the Consumer Price Index for All Urban Consumers
18
(CPI-U), U.S. City Average, All Items, under its current
19
official reference base as designated by the Bureau of Labor
20
Statistics, U.S. Department of Labor. The adjusted amounts
21
shall be attained by multiplying the relevant monetary
22
amount by the annual average CPI-U for the most recent
23
calendar year, and then dividing that sum by the annual
24
average CPI-U for 1992."
2
1 SEC. 102. DIVERSITY OF CITIZENSHIP JURISDICTION; AWARD OF
2 ATTORNEY'S FEES TO PREVAILING PARTY.
3
Section 1332 of Title 28, United States Code, is amended by
4 adding after subsection (e) the following new subsection:
5
" (f) For the purposes of this section:
6
" (1) The prevailing party shall be entitled to
7
attorney's fees only to the extent that such party prevails
8
on any position or claim advanced during the litigation.
9
The sum of entitled attorney's fees shall be paid by the
10
non-prevailing party but shall not exceed the attorney's
11
fees of the non-prevailing party with regard to such
12
position or claim. If the non-prevailing party receives
13
services under a contingent fee agreement, the sum of the
14
entitled attorney's fee shall not exceed the reasonable
15
value of those services.
16
II (2) Counsel of record in actions under this section
17
shall maintain accurate, complete records of hours worked on
18
the matter regardless of the fee arrangement with his
19
client.
20
" (3) The term 'prevailing party' means a party to an
21
action who obtains a favorable final judgment (other than by
22
settlement), exclusive of interest, on all or a portion of
23
the claims asserted during the litigation.
24
" (4) The court may, in its discretion, limit the fees
25
recovered under paragraph (1) of this section if the court
26
finds special circumstances that make payment of such fees
27
unjust.
3
1
" (5) This subsection shall not apply to any action
2
removed from a state court pursuant to Section 1441 of Title
3
28, United States Code, or to the United States or any
4
state, agency of the United States or any state, or any
5
official, officer or employee of a federal or state
6
agency "
7 SEC. 103. AMENDMENT TO EQUAL ACCESS TO JUSTICE ACT.
8
(a) Subsection (d) (2) (A) (ii) of section 2412 of Title 28,
9 United States Code, is amended by striking out "or a special
10 factor, such as the limited availability of qualified attorneys
11 for the proceedings involved," and inserting in lieu thereof "as
12 reflected by the change in the Consumer Price Index for All Urban
13 Consumers (CPI-U), U.S. City Average, All Items, under its
14 current official reference base as designated by the Bureau of
15 Labor Statistics, U.S. Department of Labor.
16
(b) Subsection (d) of section 2412 of Title 28, United
17 States Code, is amended by adding the following new paragraph
18 after paragraph (d) (5) :
19
" (6) (A) If a court determines that the cost of living
20
adjustment permitted by paragraph (d) (2) (A) (ii) should be
21
made in a particular case, it shall calculate the adjustment
22
in accordance with this paragraph. When compensable
23
services are rendered in more than one calendar year, an
24
adjustment shall be made for each year in which compensable
25
services are rendered.
4
1
(i) When compensable services are rendered in the
2
present calendar year, the hourly rate shall be calculated
3
by multiplying $75 times the CPI-U for the month in which
4
the last compensable services were rendered, and then
5
dividing that sum by the CPI-U for October, 1981.
6
(ii) When compensable services are rendered in more
7
than one calendar year, the adjustment for services rendered
8
in the present calendar year shall be calculated using the
9
formula set forth in (i) above. The hourly rate for
10
services rendered in each previous calendar year shall be
11
calculated by multiplying $75 times the annual average CPI-U
12
for the year in which the services were rendered, and then
13
dividing that sum by the CPI-U for October, 1981."
14 SEC. 104. PRIOR NOTICE AS A PREREQUISITE TO BRINGING
15 SUIT IN THE UNITED STATES DISTRICT COURT.
16 Title 28 of the United States Code is amended by adding a new
17 section 483 as follows:
18
"Prior Notice To Suit. (a) At least 30 days before filing
19
suit, a claimant shall transmit written notice to the
20
intended defendant or defendants of the specific claims
21
involved, including the amount of actual damages and
22
expenses incurred and to be incurred. The claimant shall
23
transmit such notice to the intended defendant or defendants
24
at an address reasonably calculated to provide actual notice
25
to each such party. For purposes of this section,
26
'transmit' shall mean to mail by first class-mail, postage
27
prepaid, or contract for delivery by any company which
5
1
physically delivers correspondence as a commercial service
2
to the public in its regular course of business. A
3
certificate of service evidencing compliance with this
4
subsection shall be filed with the court at the commencement
5
of the action.
6
" (b) In the event the applicable statute of limitations for
7
that action would expire during the period of notice, the
8
statute of limitations shall expire on the thirtieth day
9
from the date written notice was transmitted to the intended
10
defendant or defendants. The parties may by written
11
agreement extend the tolling period not to exceed 90 days.
12
" (c) The requirements of this section shall not apply --
13
" (1) in any action to seize or forfeit assets subject
14
to forfeiture or in any bankruptcy, insolvency,
15
receivership, conservatorship, or liquidation proceeding;
16
" (2) where the assets that are the subject of the
17
action or that would satisfy the judgment are subject to
18
flight, dissipation or destruction, or where the defendant
19
is subject to flight;
20
" (3) where a written notice prior to filing suit is
21
otherwise required by law, or where the claimant has made a
22
prior attempt in writing to settle the claim with the
23
defendant;
24
II (4) in proceedings to enforce a civil investigative
25
demand or an administrative summons;
26
II (5) in actions to foreclose liens; or
6
1
" (6) in actions pertaining to temporary restraining
2
orders, preliminary injunctive relief, fraudulent conveyance
3
of property, or in other types of actions which by their
4
nature compel immediate resort to the courts.
5
" (d) In the event the district court finds that the
6
requirements of subsection (a) of this section have not been
7
fulfilled by the claimant, and such defect is asserted by
8
the defendant within 60 days of service of the summons or
9
complaint upon such defendant, the claim shall be dismissed
10
without prejudice and the costs of such action, including
11
attorney's fees, shall be imposed upon the claimant.
12
Whenever an action is dismissed under this section, the
13
claimant may refile such claim within 60 days after
14
dismissal regardless of any statutory limitations period if:
15
(1) during the 60 days after dismissal, notice is effected
16
under subsection (a) of this section and, (2) the original
17
action was timely filed in accordance with subsection (b) .".
18 SEC. 105. AWARD OF ATTORNEY'S FEES IN DISPUTES INVOLVING THE
19 UNITED STATES.
20 Title 28 of the United States Code is amended by adding a new
21 section 2412a following 28 U.S.C. $2412 as follows:
22
"Award of Attorney's Fees in Disputes Involving The United
23
States. (a) Except as otherwise specifically provided by
24
statute, the United States is authorized to enter into an
25
agreement which provides that attorney's fees may be awarded
26
against the United States or any other party to the
27
litigation --
7
1
" (1) where the United States commenced the suit or
2
" (2) in civil litigation involving disputes pursuant to
3
the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613,
4
including litigation before boards of contract appeals
5
pursuant to 41 U.S.C. §§ 606 and 607; or
6
" (3) where the United States and another party have
7
agreed to the use of outcome-determinative mediation, the
8
mediation has resulted in a determination, and the United
9
States or the other party has given notice pursuant to 28
10
U.S.C. § 484 (b) (8) pertaining to outcome-determinative
11
mediation, that either party accepts the determination. In
12
this event, 28 U.S.C. § 484 (b) (8) (A) - (8) (c), pertaining to
13
award of costs and attorney's fees, shall apply to the award
14
of attorney's fees.
15
" (b) The following standards shall apply to the award of any
16
attorney's fees pursuant to subsection (a) (1) or (2) :
17
" (1) Attorney's fees may be awarded only to a
18
prevailing party in the litigation, subject to paragraphs
19
(b) (2) and (3) The prevailing party shall be entitled to
20
attorney's fees from the non-prevailing party with respect
21
to and only to the extent that such party prevails on any
22
claim advanced during the litigation, except that the sum of
23
entitled attorney's fees shall not exceed the attorney's
24
fees of the non-prevailing party with regard to such claim.
25
" (2) In determining the amount of attorney's fees for a
26
private party, the court or board shall take into account
8
1
the degree of success obtained by that party relative to its
2
original claim or claims, the prevailing market rates in the
3
area for the kind and quality of the legal services
4
furnished, and any other factors relevant to whether an
5
award of attorney's fees would be reasonable and, if so,
6
what a reasonable amount of attorney's fees would be.
7
" (3) In determining the amount of attorney's fees of
8
the United States, the court or board shall determine the
9
number of hours spent by the attorneys employed by the
10
United States on the litigation multiplied by the salaries
11
and benefits paid those attorneys, and an amount for
12
overhead, computed as an hourly rate.
13
" (c) A party who files an application for an award of
14
attorney's fees and expenses against the United States under
15
any other provision of law may not pursue an award of
16
attorney's fees under this section. A party who files an
17
application for an award of attorney's fees under this
18
section may not pursue an award of attorney's fees and
19
expenses under any other provision of law. A party who
20
agrees to mediation under 28 U.S.C. § 484 may seek an award
21
of attorney's fees only under this section and 28 U.S.C. §
22
484.
23
"(d) A party seeking an award of attorney's fees under this
24
section shall file an application for fees within thirty
25
days of final judgment in the action. The application shall
26
show that the party is eligible to receive an award under
9
1
this section and the amount sought, including an itemized
2
statement from any attorney appearing on behalf of the party
3
which sets forth the actual time expended and the rate at
4
which fees are computed. Within thirty days after service
5
of the fee application upon the party against whom the fees
a
6
are sought to be awarded, that party may file a response
7
setting forth its reasons why an award of fees would not be
8
reasonable or why the amount of fees should be reduced.
9
Where an award of attorney's fees is sought against any
10
party, the attorney for that party shall submit a statement
11
of the total amount of attorney's fees incurred in the
12
litigation in order that the court or board may determine
13
that the fees sought in the application do not exceed the
14
amount of fees incurred by that party.
15
" (e) As provided in appropriations acts, agreements may be
16
entered into as authorized by this section. Awards of
17
attorney's fees received by an agency on behalf of the
18
United States pursuant to this section shall be credited to
19
an appropriate account of that agency. To the extent
20
provided in advance in appropriation acts, such amounts
21
shall be available only to pay awards of attorney's fees
22
against that agency on behalf of the United States made
23
pursuant to this section. Each such agency is authorized to
24
pay any shortfall caused if amounts credited to such account
25
are insufficient to pay amounts awarded against such agency
10
1
on behalf of the United States from funds currently
2
available in such account.
3
" (f) For the purposes of this section:
4
"(1) 'United States' includes any agency and any
5
official of the United States acting in his or her official
6
capacity;
7
"(2) 'final judgment' means a judgment that is final
8
and not appealable; and
9
"(3) 'prevailing party' means a party to an action who
10
obtains a favorable final judgment other than by settlement,
11
exclusive of interest, on all or a portion of the claims
12
asserted during the litigation.
13 SEC. 106. AVOIDANCE OF LITIGATION THROUGH MULTI-DOOR
14 COURTHOUSES.
15
Title 28 of the United States Code is amended by adding a
16 new section 484 as follows:
17
"Multi-Door Courthouses. (a) The chief judge of each
18
federal judicial circuit shall designate one district within
19
the jurisdiction of the Circuit to be a pilot Multi-Door
20
Courthouse district; provided, however, that the United
21
States Court of Appeals for the District of Columbia Circuit
22
shall not be included. The United States Court of Appeals
23
for the Federal Circuit shall designate the United States
24
Claims Court to be a pilot Multi-Door Courthouse. Such
25
designation, and the program established by this section,
26
shall terminate at the expiration of a three-year period
11
1
following such designation unless renewed by an Act of
2
Congress.
3
" (b) (1) Every court which has been designated as a Multi-
4
Door Courthouse, as set forth in subsection (a), shall, not
5
later than 6 months after the effective date of this Act,
6
establish an alternative dispute resolution plan.
7
" (2) The alternative dispute resolution plan shall
8
include, but not be limited to--
9
" (A) procedures for limited discovery;
10
" (B) confidentiality of proceedings as to possible
11
subsequent pretrial and trial actions; and
12
" (C) the selection, use, and payment of non-
13
judicial personnel (also referred to in this section as
14
neutrals, mediators, or arbitrators) who may be selected to
15
conduct alternative dispute resolution procedures.
16
" (3) The plan shall also establish standards for
17
determining which cases are appropriate for alternative
18
dispute resolution, considering such factors as whether
19
factual issues predominate over legal issues, whether the
20
case involves complex or novel legal issues requiring
21
judicial action, and any other factors the court considers
22
relevant.
23
" (4) Each plan shall provide that each federal judge
24
or, in a case assigned to a magistrate judge, magistrate
25
judge in a Multi-Door Courthouse established under
26
subsection (a) shall conduct a conference with counsel
12
1
within 120 days after a complaint is filed to review non-
2
binding, voluntary alternative dispute resolution procedures
3
that may be used in lieu of litigation to resolve the claims
4
in controversy.
5
" (5) Outcome-determinative mediation under this
6
section means a procedure in which either a single mediator
7
or a panel of three mediators selected by or under the
8
direction of a federal district court provides the parties
9
with a dollar amount determination that would be awarded if
10
the case is tried.
11
" (6) Each plan shall authorize the parties, if they
12
agree, to utilize non-binding alternative dispute resolution
13
procedures that may be used in lieu of litigation to resolve
14
the claims in controversy. These non-binding alternative
15
dispute resolution procedures shall include, but are not
16
limited to, early neutral evaluation, traditional mediation,
17
outcome-determinative mediation, minitrials, summary jury
18
trials, and arbitration.
19
" (7) Each plan shall provide that--
20
" (A) the parties may agree as to the use of any
21
alternative dispute resolution procedure listed in the
22
alternative dispute resolution plan to effectuate prompt
23
resolution of the claims involved; and
24
" (B) the parties may choose to utilize the
25
alternative dispute resolution procedures and neutrals made
26
available by their court or may, if all parties and the
13
1
court agree, utilize the services of other neutrals not
2
designated in accordance with the court's alternative
3
dispute resolution plan.
4
" (8) Each plan shall also provide that if the parties
5
choose outcome-determinative mediation and in the event a
6
determination is reached--
7
" (A) either or any party may give notice that it
8
intends to accept that determination, while the other party
9
or parties remain free to reject the determination and
10
continue with the litigation. If all parties reject that
11
determination, no costs or attorney's fees shall be assessed
12
against any party;
13
" (B) a plaintiff, including the United States or
14
an officer or agency thereof, who rejects the determination
15
and fails to obtain a final judgment that is at least ten
16
percent greater than the determination shall pay the
17
defendant's costs, as set forth in 28 U.S.C. $1920, and
18
reasonable attorney's fees, as set forth in 28 U.S.C.
19
$2412a, incurred after the rejection of the determination;
20
and
21
" (c) a defendant, including the United States and
22
officers and agencies thereof, who rejects the determination
23
and fails to obtain a final judgment that is at least ten
24
percent less than the determination shall pay the
25
plaintiff's costs, as set forth in 28 U.S.C. §1920, and
14
1
attorney's fees, as established in 28 U.S.C. $2412a,
2
incurred after rejection of the determination.
3
"(9) In carrying out their plans, the district courts
4
are authorized to utilize the volunteer services of non-
5
judicial personnel (also known as neutrals, mediators, and
6
arbitrators) to conduct alternative dispute resolution
7
procedures. The courts are also authorized to establish and
8
pay, subject to amounts provided in advance in
9
appropriations acts and to limits set by the Judicial
10
Conference of the United States, the amount of compensation,
11
if any, that each neutral shall receive for services
12
rendered in each case.
13 SEC. 107. FLEXIBLE ASSIGNMENT OF DISTRICT COURT JUDGES.
14
(a) Section 292 (d) of Title 28, United States Code, is
15 amended by striking out "upon presentation of a certificate of
16 necessity by the chief judge or circuit justice of the circuit
17 wherein the need arises. " and inserting in lieu thereof "whenever
18 the business of that court SO requires.
19
(b) Section 604 (a) of Title 28, United States Code, is
20 amended --
21
(1) by striking out "; and" in paragraph (23) and
22 inserting in lieu thereof ";";
23
(2) by redesignating the two paragraphs currently both
24 designated as paragraph (24) as paragraph (25) and paragraph
25 (26) respectively;
15
1
(3) by striking the period at the end of new paragraph
2 (25) inserting in lieu thereof "; and"; and
3
(4) by adding the following new paragraph immediately
4 after paragraph (23) :
5
"(24) Secure information as to the courts' need for
6
temporary judicial resources to ease overcrowded dockets
7
(including information on delays being encountered in the
8
maintenance of civil suits) and prepare and transmit
9
annually to the Chief Justice, the chief judges of the
10
circuits, the Congress and the Attorney General, statistical
11
data, reports and recommendations summarizing the results of
12
this inquiry;".
13 SEC. 108. IMMUNITY OF STATE JUDICIAL OFFICERS.
14
(a) Section 1988 of Title 42, United States Code, is amended
15 by inserting before the period at the end of the second sentence
16 the following: ", except that notwithstanding any other provision
17 of law, no state judicial officer shall be held liable for any
18 costs, including attorney's fees, in any proceeding brought
19 against such judicial officer for an act or omission taken in an
20 official capacity".
21
(b) Section 1983 of Title 42, United States Code, is
22 amended by adding before the period at the end of the first
23 sentence: ", except that in any action brought against a
24 judicial officer for an act or omission committed in such
25 officer's official capacity, injunctive relief shall not be
16
1 granted unless a declaratory decree was violated or declaratory
2 relief was unavailable".
3 SEC. 109. AMENDMENT TO THE CIVIL RIGHTS OF INSTITUTIONALIZED
4 PERSONS ACT.
5
(a) Section 1997e of Title 42, United States Code, is
6 amended by --
7
(1) amending (a) (1) to read as follows:
8
"In any action brought pursuant to section 1983 of Title 42,
9
United States Code, by any adult convicted of a crime con-
10
fined in any jail, prison, or other correctional facility,
11
the court shall continue such case for a period not to ex-
12
ceed 180 days in order to require exhaustion of such plain,
13
speedy, and effective administrative remedies as are
14
available.
15
(2) redesignating paragraphs (b) (1) and (2) as
16
paragraphs (b) (2) and (3), respectively; and
17
(3) adding a new paragraph (b) (1) immediately after
18 paragraph (a) (2) to read as follows:
19
" (b) (1) Upon the request of a State or local corrections
20
agency, the Attorney General of the United States shall
21
provide the agency with technical advice and assistance in
22
establishing plain, speedy, and effective administrative
23
remedies for inmate grievances.
24
(b) Subsection (d) of section 1915 of Title 28, United
25 States Code, is amended to read as follows:
26
" (d) The court may request an attorney to represent any
27
such person unable to employ counsel and may dismiss the
17
1
case if the allegation of poverty is untrue, or if satisfied
2
that the action fails to state a claim upon which relief can
3
be granted or is frivolous or malicious."
4 SEC. 110. IMPROVEMENTS IN CASE MANAGEMENT.
5
Subsection (a) of Section 623 of Title 28, United States
6 Code, is amended --
7
(a) by redesignating paragraphs (5), (6), and (7) as
8 paragraphs (6), (7) and (8), respectively; and
9
(b) by adding the following new paragraph immediately after
10 paragraph (4) :
11
" (5) study and determine ways in which case and docket
12
management techniques (including alternative dispute
13
resolution techniques) may be applied to improve the cost-
14
effectiveness of litigation and to eliminate unjustified
15
expense and delay, and include in the annual report required
16
by paragraph (3) of this subsection details of the results
17
of the studies and determinations made pursuant to this
18
paragraph;".
19 SEC. 111. ASSIGNMENT OF JUDGES; PANELS; HEARING; QUORUM.
20
(a) Subsection (c) of section 46 of Title 28, United States
21 Code, is amended to read as follows:
22
" (c) Cases and controversies shall be heard and determined
23
by a court or panel of not more than three judges (except
24
the United States Court of Appeals for the Federal Circuit
25
may sit in panels of more than three judges if its rules so
26
provide), unless a hearing or rehearing before the court in
18
1
banc is ordered by a majority of the circuit judges of the
2
circuit who are in regular active service. A court in banc
3
shall consist of all circuit judges in regular active
4
service, except that any senior judge of the circuit shall
5
be eligible to participate, at his election, and upon
6
designation and assignment pursuant to section 294 (c) of
7
this title and the rules of the circuit, as a member of an
8
in banc court reviewing a decision of a panel of which such
9
judge was a member.
10
(b) Section 6 of Public Law 95-486, 92 Stat. 1633, is
11 amended to read as follows:
12
"Sec. 6. Any court of appeals having more than 15 active
13
judges may constitute itself into administrative units
14
complete with such facilities and staff as may be prescribed
15
by the Administrative Office of the United States Courts. "
16 SEC. 112. SEVERABILITY.
17
If any provision of this Act or the amendments made by this
18 Act or the application of any provision or amendment to any
19 person or circumstance is held invalid, the remainder of this Act
20 and such amendments and the application of such provision and
21 amendment to any other person or circumstance shall not be
22 affected by that invalidation.
23 SEC. 113. EFFECTIVE DATE.
24
Except as expressly otherwise provided, this Act shall
25 become effective 90 days after the date of enactment. This Act
26 shall not apply to litigation commenced prior to the effective
19
1 date except that sections 108 and 109 shall apply to civil
2 actions pending in any court on the date of enactment.
ACCESS TO JUSTICE ACT OF 1992
SECTION-BY-SECTION ANALYSIS
ACCESS TO JUSTICE ACT OF 1992
SECTION-BY-SECTION ANALYSIS
This bill, the "Access to Justice Act of 1992" (the "Act"),
provides for greater access to civil justice by reducing costs,
delays, and excessive, needless litigation. The analysis below
summarizes and explains various key provisions of the Act.
Section 101 provides that the amount in controversy required
to invoke Federal court jurisdiction does not include the amount
of damages sought for pain and suffering or mental anguish,
punitive or exemplary damages, and attorney's fees or costs.
Section 102 adopts a "Fairness Rule" in cases brought under
Federal courts' diversity jurisdiction. The rule will not apply
where (1) the action is removed under 28 U.S.C. §1441; or (2) the
United States or any State, agency of the United States or any
State, or any official, officer or employee of a Federal or State
agency is a party to the action. Under this system, the
prevailing party is entitled to attorney's fees that it expended
in order to prevail, limited to the amount of attorney's fees the
non-prevailing party incurred. Awarded fees are also subject to
limits imposed by judicial discretion in circumstances where
requiring payment of all or a portion of the fees would be
unjust. If the losing party received services under a contingent
fee agreement, the reasonable value of those services is the
award limit. The term "prevailing party" is defined for purposes
2
of this section and section 105 to mean a party to an action who
obtains a favorable judgment, other than by settlement, exclusive
of interest, on all or a portion of the claims asserted during
the litigation.
Section 103 amends the Equal Access to Justice Act.
Subsection (a) establishes a uniform methodology for calculating
awardable fees based upon the Bureau of Labor Statistics'
Consumer Price Index. Subsection (b) provides clear standards
for calculating a cost of living adjustment for compensable
services. No other adjustment to the uniform methodology is to
be made.
Section 104 adds a new section to title 28 of the United
States Code to require that a claimant give written notice of the
specific claims and the amount of actual damages prior to filing
suit in the United States District Court. A certificate of
service showing compliance must be filed when an action is
commenced. New subsection (b) tolls an applicable statute of
limitations that would expire during the period of notice for
thirty (30) days from the date the written notice is transmitted.
New subsection (c) sets out exceptions to the prior notice
prerequisite, which include circumstances that compel immediate
resort to the courts.
3
New subsection (d) provides that upon a finding that the
claimant has not complied with the provisions of new subsection
(a) and upon the assertion of such a defect by the defendant
within 60 days of service of the summons or complaint, the claim
will be dismissed without prejudice, and the costs of such
action, including attorney's fees, may be imposed upon the
claimant. The claimant may refile such claim within 60 days
regardless of any statutory limitations if notice pursuant to new
subsection (a) is effected and the original action was timely
filed.
Section 105 provides for an award of attorney's fees in
disputes involving the United States in specified types of cases
and is only to be implemented when the parties have expressly
agreed to shift fees in accordance with the provisions of this
section. The specified cases are (1) civil litigation initiated
by the United States; (2) disputes pursuant to the Contracts
Disputes Act of 1978, including litigation before boards of
contract appeals, or (3) cases where the United States and
another party have agreed to use outcome-determinative mediation
which has resulted in a determination that either party has given
notice to accept. In those cases, an award of attorney's fees
may be awarded to a prevailing party in the litigation only to
the extent that such party prevails on any claim advanced during
4
the litigation. The amount cannot not exceed the attorney's fees
of the party who did not prevail on such claim.
In determining the amount of attorney's fees awardable to a
private party, factors including the degree of success obtained
by that party relative to its original claim or claims and the
prevailing market rates in the area for the kind and quality of
the legal services furnished should be considered in determining
whether an award of attorney's fees would be reasonable, and, if
so, in what amount. The number of hours spent by the attorneys
employed by the United States on the litigation multiplied by the
salaries and benefits paid to those attorneys, and an amount for
overhead, computed at an hourly rate, is determinative of the
amount of attorney's fees awardable to the United States.
An application for an award of attorney's fees under this
Act bars pursuit of an award of attorney's fees and expenses
under the Equal Access to Justice Act. Likewise, an application
under the Equal Access to Justice Act precludes an application
for an award of attorney's fees under this Act. Thus, a party
may not initiate proceedings under either Act without waiving all
rights under the other Act.
This section sets forth the procedures by which to apply for
and obtain an award of attorney's fees in certain disputes
5
involving the United States. It also states that fee-shifting
agreements may be entered into, fees received by the United
States may be credited to an agency account, and payments may be
made from that account to pay fee awards against the United
States.
"United States" is defined for purposes of this section to
mean any agency and any official of the United States acting in
his or her official capacity. "Final judgment" is defined to
mean a judgment that is final and not appealable.
Section 106 adds a new section to title 28 of the United
States Code which creates a multi-door courthouse program to be
used in selected Federal district courts for a three-year period
(unless renewed by Congress). This program will foster use of
alternative dispute resolution ("ADR") procedures. The
designated districts will adopt plans permitting the parties to
choose among specific methods for resolving their disputes,
without litigation.
New subsection (a) provides that the Chief Judge of each of
the Federal Circuits, except the District of Columbia, will
designate one of its districts to be a pilot multi-door
courthouse.
6
New subsection (b) provides that each multi-door courthouse
district will, within six months of the effective date of this
Act, establish an ADR plan. The plan will include (1) procedures
for limited discovery; (2) confidentiality of proceedings
regarding possible pretrial and trial actions; (3) selection, use
and payment of non-judicial personnel to conduct ADR; and (4)
standards for determining which cases should go to ADR. The
parties will be authorized, upon agreement, to utilize non-
binding ADR in lieu of litigation. Approved forms of ADR include
early neutral evaluation, traditional mediation, outcome-
determinative mediation (one mediator or a panel of three
mediators selected by or under the direction of a Federal
district court to provide a dollar amount determination of the
outcome of the case if tried), minitrials, summary jury trials,
and arbitration. In addition, the ADR plan will provide for a
conference with counsel conducted by the district judge or
magistrate judge to whom a case is assigned within 120 days after
a complaint is filed to review the use of non-binding, voluntary
ADR procedures.
New subsection (b) further provides that the parties may
agree to use any ADR procedure listed in the ADR plan. The
parties may choose to use the ADR procedures and neutrals made
available by their district court. In addition, if all parties
and the court agree, the parties may use other neutrals, not
7
designated through their court's ADR plan. In the event that
outcome-determinative mediation is selected and a determination
is reached, new subsection (b) provides that any party may
independently decide to accept or reject the determination and
continue with the litigation, giving notice of such an intention.
If all parties reject the determination, then no attorney's fees
and costs will be assessed against any party. If any party
rejects a determination and fails to obtain an outcome at least
10% more favorable than the ADR determination, that party will
have to pay its opponent's reasonable expenses and attorney's
fees incurred after rejection of the determination. This
provision applies to the United States or any of its officers or
agencies.
The district courts are authorized to use non-judicial
personnel on a volunteer basis to conduct the procedures in
carrying out the ADR plans. These volunteers, neutrals,
mediators, and arbitrators may be compensated for services
rendered by the district courts, subject to amounts provided in
advance in appropriations acts and to limits set by the Judicial
Conference of the United States.
Section 107 encourages more efficient use of judicial
resources by requiring that information be obtained as to the
courts' need for temporary judicial resources and that the
8
results of such inquiry be provided annually to the Chief
Justice, the chief judges of the circuits, the Congress, and the
Attorney General. Collection of this information will complement
the efforts of other groups interested in the efficiency and
structure of the Federal court system.
Section 108 applies to the immunity of State judicial
officers. Subsection (a) restores judicial immunity to State
court judges for the fees and costs they incur in defending their
official actions. Subsection (b) provides that injunctive relief
will not be granted in any action against judicial officers for
their official actions unless declaratory relief was unavailable
or such a decree was violated.
Section 109 amends section 7 of the Civil Rights of
Institutionalized Persons Act (42 U.S.C. §1997e) to remove
unnecessary barriers to effective grievance procedures. The
courts will be required to continue any action brought by an
inmate pursuant to 42 U.S.C. §1979 for a period up to 180 days to
require the exhaustion of any available administrative remedies.
The Attorney General will provide States or local correction
agencies with technical advice and assistance in establishing
administrative remedies for inmate grievances, if requested.
Subsection (b) provides that the court may dismiss a case if an
attorney is appointed upon an allegation of poverty which is
9
untrue, or if the court is satisfied that the action fails to
state a claim, or is frivolous or malicious.
Section 110 provides for the study and determination of
methods of case and docket management techniques to improve the
cost effectiveness of litigation and to eliminate unjustified
expense and delay.
Section 111 changes current laws by eliminating "mini" in
banc panels.
Section 112 is a severability clause which would preserve
the balance of the Act if any portion of it is held to be
invalid.
Section 113 specifies the Act's effective date.
FLURTBUS
UNUM
CIVIL JUSTICE REFORM:
PROPOSED AMENDMENTS
TO FEDERAL RULES
PREFACE TO PROPOSED CIVIL JUSTICE
REFORM AMENDMENTS TO THE
FEDERAL RULES OF CIVIL PROCEDURE
This pamphlet contains the Administration's proposed revisions to
the Federal Rules of Civil Procedure, Federal Rules of Evidence
and Federal Rules of Appellate Procedure. These revisions were
submitted to the Civil Rules Advisory Committee on February 7,
1992 to implement many of the Civil Justice Reform ("CJR")
recommendations made by the President's Competitiveness Council.
The Amendments were submitted in conjunction with comments on
pending rules amendments proposed by the Advisory Committee.
Consideration of proposed amendments to the Federal Rules of
Civil Procedure by the Advisory Committee precedes further
consideration by the Standing Rules Committee, the Judicial
Conference of the United States, the Supreme Court, and Congress.
Accompanying the proposed rule changes is a commentary explaining
the suggested revisions. The commentary is located at the back
of this pamphlet.
AMENDMENTS TO THE FEDERAL RULES OF CIVIL
PROCEDURE TO IMPLEMENT THE AGENDA
FOR CIVIL JUSTICE REFORM IN AMERICA
Rule 11 CJR Recommendations 37 - 39
Introduction
Proposed additions to Rule 11 of the Federal Rules of Civil Procedure to Implement
Recommendations 37 39 of the Agenda for Civil Justice Reform in America are underlined below
and deletions to the present rules are bracketed.
Rule 11. Signing of Pleadings, Motions, and Other Papers; Sanctions
(a) Incorrect or False Court Filings. Every pleading, motion, and other paper of
a party represented by an attorney shall be signed by at least one attorney of
record in the attorney's individual name, whose address shall be stated. A party
who is not represented by an attorney shall sign the party's pleading, motion, or
other paper and state the party's address. Except when otherwise specifically
provided by rule or statute, pleadings need not be verified or accompanied by
affidavit. The rule in equity that the averments of an answer under oath must be
overcome by the testimony of two witnesses or of one witness sustained by
corroborating circumstances is abolished. The signature of an attorney or party
constitutes a certificate by the signer that the signer has read the pleading,
motion or other paper; that to the best of the signer's knowledge, information,
and belief formed after reasonable inquiry it is well grounded in fact and is
warranted by existing Law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not interposed for any
improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation. If a pleading, motion or other paper is not
signed, it shall be stricken unless it is signed promptly after the omission is
called to the attention of the pleader or movant. If a pleading, motion, or other
paper is signed in violation of this rule, the court, upon motion or upon its own
initiative, shall impose upon the person who signed it, a represented party, or
both, or any other attorney who is not a signatory but who is responsible for the
veracity of the content of the pleading, motion, or other paper, an appropriate
sanction, which may include an order to pay to the other party or parties the
amount of the reasonable expenses incurred because of the filing of the pleading,
motion, or other paper, including a reasonable attorney's fee.
(b) Correction of Subsequently Detected False Or Incorrect Statements. If after
the filing of a document the attorney or party who signed pleadings, motions or
other papers discovers or obtains knowledge, information, or belief that the
document signed contains an error or falsehood, the party is obligated to provide
corrected information within a reasonable period of time of learning of the error
or falsehood.
- 1 -
AMENDMENTS TO THE FEDERAL RULES OF CIVIL
PROCEDURE TO IMPLEMENT THE AGENDA
FOR CIVIL JUSTICE REFORM IN AMERICA
Rule 16 CJR Recommendation 5
Introduction
Proposed additions to Rule 16 of the Federal Rules of Civil Procedure to Implement
Recommendation 5 of the Agenda for Civil Justice Reform in America are underlined below and
deletions to the present rules are bracketed.
Rule 16.
Pretrial Conferences; Scheduling; Management
(a) Pretrial Conferences; Objectives. In any action, as soon as practicable, but
in no event more than 120 days after the filing of the complaint, the court shall
direct the attorneys for the parties and any unrepresented parties to appear
before the court, or a neutral third party appointed by the court, for conferences
to discuss settlement and possible resort to alternative dispute resolution
procedures. In addition, [In any action,] the court may in its discretion direct
the attorneys for the parties and any unrepresented parties to appear before it
for a conference or conferences before trial for such other purposes as
(1) expediting the disposition of the action;
(2) establishing early and continuing control so that the case
will not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities; and
(4) improving the quality of the trial through more thorough
preparation. [, and;]
[(5) facilitating the settlement of the case.]
(b) Scheduling and Planning. Except in categories of actions exempted by district
court rule as inappropriate, the judge, or a magistrate when authorized by
district court rule, shall, after consulting with the attorneys for the parties
and any unrepresented parties, by a scheduling conference, telephone, mail, or
other suitable means, enter a scheduling order that limits the time
(1) to join other parties and to amend the pleadings;
(2) to file and hear motions; and
(3) to complete discovery.
The scheduling order also may include
(4) the date or dates for conferences before trial, a final
pretrial conference, and trial; and
(5) any other matters appropriate in the circumstances of the
case.
The order shall issue as soon as practicable but in no event more than 120
days after filing of the complaint. A schedule shall not be modified except by
leave of the judge or a magistrate when authorized by district court rule upon a
showing of good cause.
(c) Subjects to be Discussed at Pretrial Conferences. In addition to discussing
settlement and resort to alternative dispute resolution procedures as provided by
section (a), [T]the participants at any conference under this rule may consider
and take action with respect to
- 2 -
(1) the formulation and simplification of the issues, including the
elimination of frivolous claims or defenses;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents which
will avoid unnecessary proof, stipulations regarding the authenticity of
documents, and advance rulings from the court on the admissibility of
evidence;
(4) the avoidance of unnecessary proof and of cumulative evidence;
(5) the identification of witnesses and documents, the need and schedule
for filing and exchanging pretrial briefs, and the date or dates for
further conferences and for trial;
(6) the advisability of referring matters to a magistrate or master;
[(7) the possibility of settlement or the use of extrajudicial procedures
to resolve the dispute;]
(7) [(8)] the form and substance of the pretrial order;
(8) [(9)] the disposition of pending motions;
(9) [(10)] the need for adopting special procedures for managing
potentially difficult or protracted actions that may involve complex
issues, multiple parties, difficult legal questions, or unusual proof
problems; and
(10) [(11)] such other matters as may aid in the disposition of the action.
At least one of the attorneys for each party participating in any conference
before trial shall have authority to enter into stipulations and to make admissions
regarding all matters that the participants may reasonably anticipate may be discussed.
(d) Final Pretrial Conference. Any final pretrial conference shall be held as
close to the time of trial as reasonable under the circumstances. The
participants at any such conference shall formulate a plan for trial, including a
program for facilitating the admission of evidence. The conference shall be
attended by at least one of the attorneys who will conduct the trial for each of
the parties and by any unrepresented parties.
(e) Pretrial Orders. After any conference held pursuant to this rule, an order
shall be entered reciting the action taken. This order shall control the
subsequent course of the action unless modified by a subsequent order. The order
following a final pretrial conference shall be modified only to prevent manifest
injustice.
(f) Sanctions. If [a] an unrepresented party or a party's attorney fails to obey
[a scheduling or pretrial order, or if no appearance is made on behalf of a party
at a scheduling or pretrial conference, or if a] an order of the court directing
participation in a settlement conference, if an unrepresented party or [a] party's
attorney is substantially unprepared to participate in the conference, or if [a]
an unrepresented party or [a] party's attorney fails to participate in good faith,
the judge, upon motion of either party or upon the judge's own initiative, may
make such orders with regard thereto as are just[,] [and among others any of the
orders provided in Rule 37(b)(2)(B), (C), (D).] and appropriate. Refusal to agree
to any proposal made by any party, standing alone, shall not constitute failure to
participate in good faith. In lieu of or in addition to any other sanction, the
judge shall require the party or the attorney representing the party or both to
pay the reasonable expenses incurred because of any noncompliance with this rule,
including attorney's fees, unless the judge finds that the noncompliance was
substantially justified or that other circumstances make an award of expenses
unjust.
- 3 -
AMENDMENTS TO THE FEDERAL RULES OF CIVIL
PROCEDURE TO IMPLEMENT THE AGENDA
FOR CIVIL JUSTICE REFORM IN AMERICA
Rule 26 CJR Recommendations 6-13; 21-22
Introduction
Proposed additions to Rule 26 of the Federal Rules of Civil Procedure to Implement
Recommendations 6 - 13 and 21 22 of the Agenda for Civil Justice Reform in America are
underlined below and deletions to the present rules are bracketed.
Rule 26. General Provisions Governing Discovery and Disclosure
(a) Mandatory disclosure. Unless the court otherwise directs or the
parties otherwise stipulate with the court's approval, a disclosure
statement shall be filed (i) by a plaintiff within 15 days after service of
an answer to its complaint; and (ii) by a defendant within 30 days after
serving its answer to the complaint. Except in actions exempted by local
rule or order, the disclosure statement shall include:
(1) the names (and, if known, the addresses and
telephone numbers) of all persons then known to have
personal knowledge of any material fact directly
relevant to the particularized allegations of the
pleadings, including any claim or defense, briefly
indicating (if not obvious from an identification of
the person) the subjects to which such personal
knowledge pertains; and
(2) a general description of the location of all
documents, data compilations, and tangible things in
the possession, custody, or control of the party
that are then known to be directly relevant to any
claim or defense;
This requirement shall apply in all cases involving adverse parties, including
multiple party suits, third party claims and counter and cross actions. Information
subject to a claim of privilege need not be disclosed. However, notice must be given to
the opposing party that a privilege is asserted. If the court determines that a party has
in bad faith failed to make adequate disclosure pursuant to this rule, the court shall bar
a party from engaging in discovery absent a showing of good cause. The disclosure
statement shall be accompanied by a certification by counsel that reasonable inquiry has
been made and that the disclosures set forth in the disclosure statement will be
supplemented promptly if additional information otherwise required to be disclosed becomes
known to counsel.
[(a)] (b) Discovery Methods. Parties may obtain discovery by one or more of the
following methods: depositions upon oral examination or written questions; written
interrogatories; production of documents or things or permission to enter upon
land or other property, for inspection and other purposes; physical and mental
examinations; and requests for admission. Discovery at a place within a country
having a treaty with the United States applicable to such discovery shall be
conducted by methods authorized by the treaty unless the court determines that
those methods are inadequate or inequitable and authorizes other discovery methods
not prohibited by the treaty.
[(b)] (c) Discovery Scope and Limits. Unless otherwise limited by order of the
court in accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending
action, whether it relates to the claim or defense of the party seeking
discovery or to the claim or defense of any other party, including the
existence, description, nature, custody, condition and location of any
books, documents, or other tangible things and the identity and location of
- 4 -
persons having knowledge of any discoverable matter. It is not ground for
objection that the information sought will be inadmissible at the trial if
the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
The frequency or extent of use of the discovery methods set forth in
subdivision [(a)] (b) shall be limited by the court if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less burdensome,
or less expensive; (ii) the party seeking discovery has had ample
opportunity by discovery in the action to obtain the information sought; or
(iii) the discovery is unduly burdensome or expensive, taking into account
the needs of the case, the amount in controversy, limitations on the
parties' resources, and the importance of the issues at stake in the
litigation. The court may act upon its own initiative after reasonable
notice or pursuant to a motion under subdivision [(c)] (d).
(2) Insurance Agreements. A party may obtain discovery of the existence
and contents of any insurance agreement under which any person carrying on
an insurance business may be liable to satisfy part or all of a judgment
which may be entered in the action or to indemnify or reimburse for
payments made to satisfy the judgment. Information concerning the
insurance agreement is not by reason of disclosure admissible in evidence
at trial. For purposes of this paragraph, an application for insurance
shall not be treated as part of an insurance agreement.
(3) Trial Preparation: Materials. Subject to the provisions of
subdivision [(b)] (c)(3) of this rule, a party may obtain discovery of
documents and tangible things otherwise discoverable under subdivision
[(b)] (c)(1) of this rule and prepared in anticipation of litigation or for
trial by or for another party or by or for that other party's
representative (including the other party's attorney, consultant, surety,
indemnitor, insurer, or agent) only upon a showing that the party seeking
discovery has substantial need of the materials in the preparation of the
party's case and that the party is unable without undue hardship to obtain
the substantial equivalent of the materials by other means. In ordering
discovery of such materials when the required showing has been made, the
court shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of any attorney or other
representative of a party concerning the litigation.
A party may obtain without the required showing a statement
concerning the action or its subject matter previously made by that party.
Upon request, a person not a party may obtain without the required showing
a statement concerning the action or its subject matter previously made by
that person. If the request is refused, the person may move for a court
order. The provisions of Rule 37(a)(4) apply to the award of expenses
incurred in relation to the motion. For purposes of this paragraph, a
statement previously made is (A) a written statement signed or otherwise
adopted or approved by the person making it, or (B) a stenographic,
mechanical, electrical, or other recording, or a transcription thereof,
which is a substantially verbatim recital of an oral statement by the
person making it and contemporaneously recorded.
(4) Trial Preparation: Experts. Discovery of facts known and opinions
held by experts, otherwise discoverable under the provisions of subdivision
(b)(1) of this rule and acquired or developed in anticipation of litigation
or for trial, may be obtained only as follows:
(A) Interrogatories. A party may through interrogatories
require any other party to identify each person whom the
other party expects to call as an expert witness at trial,
to state the subject matter on which the expert is expected
to testify, to state the substance of the facts and opinions
to which the expert is expected to testify and 8 summary of
the grounds for each opinion, to list the expert's formal
training and the expert's publications and the cases in
which the expert has testified or given a deposition, and to
state the compensation fee for the expert.
- 5 -
(B) Deposition. A party may, without the necessity of a
court order, depose each person the other party has given
notice it may call as an expert witness at trial, at a
reasonable time prior to trial as long as the party
requesting the deposition pays the expert a reasonable fee
for the time spent in the deposition, unless by motion a
court determines the payment of such fees would result in
manifest injustice, or the parties agree otherwise.
(C) Document Requests. A party may, without the necessity
of a court order, request all documents upon which the
expert witness relies or has reviewed in preparation for his
testimony.
(D) Additional Discovery. Upon motion, the court may order
further discovery by other means, subject to such
restrictions as to scope and such provisions, [pursuant to
subdivision (b)(4)(C) of this rule, concerning] including
fees and expenses, as the court may deem appropriate.
(E) [B] A party may discover facts known or opinions held by
an expert who has been retained or specially employed by
another party in anticipation of litigation or preparation
for trial and who is not expected to be called as a witness
at trial, only as provided in Rule 35(b) or upon a showing
of exceptional circumstances under which it is impracticable
for the party seeking discovery to obtain facts or opinions
on the same subject by other means.
[Current F. R. Civ. P. Rules 26(b)(4)(A)(i) and (C) are to be deleted.]
(5) Limits on Discovery. Unless otherwise permitted by the court
for good cause shown, or by agreement of counsel, no party shall
serve upon any other party, at any one time or cumulatively, more
than fifteen (15) written interrogatories, including all parts and
sub-parts. Unless otherwise permitted by the court for good cause
shown, or by agreement of counsel, no party shall take more than
ten (10) depositions, whether upon oral examination pursuant to
Rule 30, upon written questions pursuant to Rule 31, or pursuant to
any other provision of these rules.
(6) After a party has admitted a fact, by response to a request for
admissions, by stipulation or in any other manner of record, discovery by
the party that obtained the admission as to matters relevant to
establishment of that fact is barred absent an order of the court for good
cause shown.
[(c)] (d) Protective Orders. Upon motion by a party or by the person from
whom discovery is sought, and for good cause shown, the court in which the
action is pending or alternatively, on matters relating to a deposition,
the court in the district where the deposition is to be taken may make any
order which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following: (1) that the discovery not be had; (2) that the
discovery may be had only on specified terms and conditions, including a
designation of the time or place; (3) that the discovery may be had only by
a method of discovery other than that selected by the party seeking
discovery; (4) that certain matters not be inquired into, or that the scope
of the discovery be limited to certain matters; (5) that discovery be
conducted with no one present except persons designated by the court; (6)
that a deposition after being sealed be opened only by order of the court;
(7) that a trade secret or other confidential research, development, or
commercial information not be disclosed or be disclosed only in a
designated way; (8) that the parties simultaneously file specified
documents or information enclosed in sealed envelopes to be opened as
directed by the court.
If the motion for a protective order is denied in whole or in part,
the court may, on such terms and conditions as are just, order that any
- 6 -
party or person provide or permit discovery. The provisions of Rule
37(a)(4) apply to the award of expenses incurred in relation to the motion.
[(d)] (e) Sequence [and] Timing and Contents of Discovery. (1)
Sequence and Timing. Unless the court upon motion, for the
convenience of parties and witnesses and in the interests of
justice, orders otherwise, methods of discovery may be used in any
sequence and the fact that a party is conducting discovery, whether
by deposition or otherwise, shall not operate to delay any other
party's discovery.
(2) Contents of discovery requests. Each separate discovery
request shall designate the specific portion of the complaint,
answer or other pleading to which the discovery request is directed
and shall constitute a certification that the discovery request is
reasonably calculated to be relevant to the subject matter of the
designated pleading.
[(e)] (f) Supplementation of Responses. A party who has responded to a request
for discovery with a response that was complete when made is under no duty to
supplement the response to include information thereafter acquired, except as
follows:
(1) A party is under a duty seasonably to supplement the response with
respect to any question directly addressed to (A) the identity and location
of persons having knowledge of discoverable matters, and (B) the identity
of each person expected to be called as an expert witness at trial, the
subject matter on which the person is expected to testify, and the
substance of the person's testimony.
(2) A party is under a duty seasonably to amend a prior response if the
party obtains information upon the basis of which (A) the party knows that
the response was incorrect when made, or (B) the party knows that the
response though correct when made is no longer true and the circumstances
are such that a failure to amend the response is in substance a knowing
concealment.
(3) A duty to supplement responses may be imposed by order of the court,
agreement of the parties, or at any time prior to trial through new
requests for supplementation of prior responses.
[(f)] (g) Discovery Conference. At any time after commencement of an action the
court may direct the attorneys for the parties to appear before it for a
conference on the subject of discovery. The court shall do so upon motion by the
attorney for any party if the motion includes:
(1) A statement of the issues as they then appear;
(2) A proposed plan and schedule of discovery;
(3) Any limitations proposed to be placed on discovery;
(4) Any other proposed orders with respect to discovery; and
(5) A statement showing that the attorney making the motion has made a
reasonable effort to reach agreement with opposing attorneys on the matters
set forth in the motion. Each party and each party's attorney are under a
duty to participate in good faith in the framing of a discovery plan if a
plan is proposed by the attorney for any party. Notice of the motion shall
be served on all parties. Objections or additions to matters set forth in
the motion shall be served not later than 10 days after service of the
motion.
Following the discovery conference, the court shall enter an order
tentatively identifying the issues for discovery purposes, establishing a plan and
schedule for discovery, subject to the provisions of subdivision (c)(5) setting
additional limitations on discovery, if any; and determining such other matters,
including the allocation of expenses, as are necessary for the proper management
- 7 -
of discovery in the action. An order may be altered or amended whenever justice
so requires.
Subject to the right of a party who properly moves for a discovery
conference to prompt convening of the conference, the court may combine the
discovery conference with a pretrial conference authorized by Rule 16.
[(g)] (h) Signing of Discovery Requests, Responses, and Objections. Every
request for discovery or response or objection thereto made by a party represented
by an attorney shall be signed by at least one attorney of record in the
attorney's individual name, whose address shall be stated. A party who is not
represented by an attorney shall sign the request, response, or objection and
state the party's address. The signature of the attorney or party constitutes a
certification that the signer has read the request, response, or objection, and
that to the best of the signer's knowledge, information, and belief formed after a
reasonable inquiry it is: (1) consistent with these rules and warranted by
existing law or a good faith argument for the extension, modification, or reversal
of existing law; (2) not interposed for any improper purpose, such as to harass or
to cause unnecessary delay or needless increase in the cost of litigation; and (3)
not unreasonable or unduly burdensome or expensive, given the needs of the case,
the discovery already had in the case, the amount in controversy, and the
importance of the issues at stake in the litigation. If a request, response, or
objection is not signed, it shall be stricken unless it is signed promptly after
the omission is called to the attention of the party making the request, response,
or objection, and a party shall not be obligated to take any action with respect
to it until it is signed.
If a certification is made in violation of the rule, the court, upon motion or
upon its own initiative, shall impose upon the person who made the certification,
the party on whose behalf the request, response, or objection is made, or both, an
appropriate sanction, which may include an order to pay the amount of the
reasonable expenses incurred because of the violation, including a reasonable
attorney's fee.
(i) Discovery plans. After service of the disclosure statements
pursuant to subdivision (a), the parties shall meet to formulate a
discovery plan. The discovery plan shall be consistent with the
provisions of subdivision (c)(5), absent agreement by the parties,
or an order of the court for good cause shown. The parties shall
submit their proposed discovery plan to the court for approval.
Absent agreement, the parties shall jointly move the court for a
discovery conference and shall file each party's proposed discovery
plan with the motion.
Discovery beyond that authorized under the plan approved by
the court may be taken by a party only if that party agrees to pay
the reasonable costs and reasonable attorney's fees of the person
or party to whom the discovery is directed. An unconditional
commitment to pay these reasonable costs and reasonable attorney's
fees, signed by counsel and by an authorized representative of the
party, shall be forwarded with any such discovery request. The
court may waive the requirement for payment for good cause shown.
The provisions of Rule 37(b) shall apply to any order
entered under this subdivision.
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AMENDMENTS TO THE FEDERAL RULES OF CIVIL
PROCEDURE TO IMPLEMENT THE AGENDA
FOR CIVIL JUSTICE REFORM IN AMERICA
Rule 37 CJR Recommendations 6 - 13
Introduction
Proposed additions to Rule 37 of the Federal Rules of Civil Procedure to Implement
Recommendations 6 - 13 of the Agenda for Civil Justice Reform in America are underlined below and
deletions to the present rules are bracketed.
Rule 37. Failure to Make or Cooperate in
Discovery: Sanctions
(a) Motion for Order Compelling Discovery. Upon compliance with subdivision (e),
[A] B party, upon reasonable notice to other parties and all persons affected
thereby may apply for an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a party may be made
to the court in which the action is pending, or, on matters relating to a
deposition, to the court in the district where the deposition is being
taken. An application for an order to a deponent who is not a party shall
be made to the court in the district where the deposition is being taken.
(2) Motion. If a deponent fails to answer a question propounded or
submitted under Rules 30 or 31, or a corporation or other entity fails to
make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer
an interrogatory submitted under Rule 33, or if a party, in response to a
request for inspection submitted under Rule 34, fails to respond that
inspection will be permitted as requested or fails to permit inspection as
requested, the discovering party may move for an order compelling an
answer, or a designation, or an order compelling inspection in accordance
with the request. When taking a deposition on oral examination, the
proponent of the question may complete or adjourn the examination before
applying for an order.
If the court denies the motion in whole or in part, it may make such
protective order as it would have been empowered to make on a motion made
pursuant to rule 26[(c)](d).
(3) Evasive or Incomplete Answer. For purposes of this subdivision an
evasive or incomplete answer is to be treated as a failure to answer.
(4) Award of Expenses of Motion. If the motion is granted, the court
shall, after opportunity for hearing, require the party or deponent whose
conduct necessitated the motion or the party or attorney advising such
conduct or both of them to pay to the moving party the reasonable expenses
incurred in obtaining the order, including attorney's fees, unless the
court finds that [the opposition to the motion was substantially justified
or that other] special circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing,
require the moving party or the attorney advising the motion or both of
them to pay to the party or deponent who opposed the motion the reasonable
expenses incurred in opposing the motion, including attorney's fees,
[unless the court finds that the making of the motion was substantially
justified or that other] unless the court finds that special circumstances
make an award of expenses unjust.
If the motion is granted in part and denied in part, the court [may] shall
apportion the reasonable expenses incurred in relation to the motion among
the parties and persons in a just manner.
- 9 -
(b) Failure to Comply with Order.
(1) Sanctions by Court in District Where Deposition is Taken. If a
deponent fails to be sworn or to answer a question after being directed to
do so by the court in the district in which the deposition is being taken,
the failure may be considered a contempt of that court.
(2) Sanctions by Court in Which Action is Pending. If a party or an
officer, director, or managing agent of a party or a person designated
under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey
an order made under subdivision (a) of this rule or Rule 35, or if a party
fails to obey an order entered under Rule 26[(f)](g), the court in which
the action is pending may make such orders in regard to the failure as are
just, and among others the following:
(A) An order that the matters regarding which the order was made
or any other designated facts shall be taken to be established for
the purposes of the action in accordance with the claim of the
party obtaining the order;
(B) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting that party
from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a judgment
by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto,
an order treating as a contempt of court the failure to obey any
orders except an order to submit to a physical or mental
examination;
(E) Where a party has failed to comply with an order under Rule
35(a) requiring that party to produce another for examination, such
orders as are listed in paragraphs (A), (B), and (C) of this
subdivision, unless the party failing to comply shows that that
party is unable to produce such person for examination.
In lieu of any of the foregoing orders or in addition thereto, the court
shall require the party failing to obey the order or the attorney advising
that party or both to pay the reasonable expenses, including attorney's
fees, caused by the failure, [unless the court finds that the failure was
substantially justified or that other] unless the court finds that special
circumstances make an award of expenses unjust.
(c) Expenses on Failure to Admit. If a party fails to admit the genuineness of
any document or the truth of any matter BS requested under Rule 36, and if the
party requesting the admissions thereafter proves the genuineness of the document
or the truth of the matter, the requesting party may apply to the court for an
order requiring the other party to pay the reasonable expenses incurred in making
that proof, including reasonable attorney's fees. The court shall make the order
unless it finds that (1) the request was held objectionable pursuant to Rule
36(a), or (2) the admission sought was of no substantial importance, or (3) the
party failing to admit had reasonable ground to believe that the party might
prevail on the matter, or (4) there was other good reason for the failure to
admit.
(d) Failure of Party to Attend at Own Deposition or Serve Answers to
Interrogatories or Respond to Request for Inspection. If a party or an officer,
director, or managing agent of a party or a person designated under Rule 30(b)(6)
or 31(a) to testify on behalf of a party fails (1) to appear before the officer
who is to take the deposition, after being served with a proper notice, or (2) to
serve answers or objections to interrogatories submitted under Rule 33, after
proper service of the interrogatories, or (3) to serve a written response to a
request for inspection submitted under Rule 34, after proper service of the
request, the court in which the action is pending on motion may make such orders
- 10 -
in regard to the failure as are just, and among others it may take any action
authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule.
In lieu of any order or in addition thereto, the court shall require the party
failing to act or the attorney advising that party or both to pay the reasonable
expenses, including attorney's fees, caused by the failure, unless the court finds
that [the failure was substantially justified or that other] special circumstances
make an award of expenses unjust.
The failure to act described in this subdivision may not be excused on the
ground that the discovery sought is objectionable unless the party failing to act
has applied for a protective order as provided by Rule 26(c).
(e) [[Abrogated]]
(e) Duty to Confer. The court shall not consider any motion brought pursuant to
this rule or Rules 26 through 36, unless movant as part of the motion, shall make
a written showing that, after personal consultation with counsel for opposing
parties and good faith attempts to resolve differences, they are unable to reach
agreement as to the discovery at issue. The showing shall recite additionally,
the date, time and, if not conducted by telephone, place of each such conference
and the names of all persons participating in the conference. A party opposing a
motion pursuant to this rule or pursuant to Rules 26 through 36 shall make a
written showing that, after making a personal consultation with counsel for
opposing parties and good faith attempts to resolve differences, they are unable
to reach agreement as to the discovery at issue and shall recite, additionally,
the date, time and place of each such conference and the names of all persons
participating in the conference, unless the party opposing the motion expressly
adopts the moving parties' written showing pursuant to this subdivision. Absent a
written showing by moving or opposing counsel or express adoption of the moving
parties' statement by the opposing party pursuant to the subdivision, the court
shall decline to consider an opposition to a motion subject to this subdivision
absent good cause shown.
(f) [Repealed. Pub.L., 96-481, Title 11, { 205(a), Oct. 21, 1980, 94 Stat.
2330.1
(g) Failure to Participate in the Framing of a Discovery Plan. If a party or a
party's attorney fails to participate in good faith in the framing of a discovery
plan by agreement as is required by Rule 26[(f)](i), the court may, after
opportunity for hearing, require such party or attorney to pay to any other party
the reasonable expenses, including attorney's fees, caused by the failure.
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AMENDMENTS TO THE FEDERAL RULES OF CIVIL
PROCEDURE TO IMPLEMENT THE AGENDA
FOR CIVIL JUSTICE REFORM IN AMERICA
Rule 56 CJR Recommendations 16 - 17
Introduction
Proposed additions to Rule 56 of the Federal Rules of Civil Procedure to Implement
Recommendations 16 17 of the Agenda for Civil Justice Reform in America are underlined below
and deletions to the present rules are bracketed.
RULE 56. Summary Judgment
(a)
For Claimant. A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory judgment may, at any time after the
expiration of 20 days from the commencement of the action or after service of a
motion for summary judgment by the adverse party, move with or without supporting
affidavits for a summary judgment in the party's favor upon all or any part
thereof.
(b)
For Defending Party. A party against whom a claim, counterclaim, or cross-
claim is asserted or a declaratory judgment is sought may, at any time, move with
or without supporting affidavits for a summary judgment in the party's favor as to
all or any part thereof.
(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days
before the time fixed for the hearing. The adverse party prior to the day of
hearing may serve opposing affidavits. The judgment sought [shall] must be
rendered forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. A summary judgment, interlocutory in character, may
be rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages. The district court's finding regarding whether a
genuine issue of material fact exists shall not be set aside unless clearly
erroneous. Whenever a motion for summary judgment is granted or denied, the court
must set forth specific findings which support its ruling.
(d)
Case Not Fully Adjudicated on Motion. If on motion under this rule
judgment is not rendered upon the whole case or for all the relief asked and a
trial is necessary, the court at the hearing of the motion, by examining the
pleadings and evidence before it and by interrogating counsel, shall [if
practicable] ascertain what material facts exist without substantial controversy
and what material facts are actually and in good faith controverted. It shall
thereupon make an order specifying the facts that appear without substantial
controversy, including the extent to which the amount of damages or other relief
is not in controversy, and directing such further proceedings in the action as are
just. Upon the trial of the action the facts so specified shall be deemed
established, and the trial shall be conducted accordingly.
(e)
Form of Affidavits; Further Testimony; Defense Required. Supporting and
opposing affidavits shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein. Sworn or certified
copies of all papers or parts thereof referred to in an affidavit shall be
attached thereto or served therewith. The court may permit affidavits to be
supplemented or opposed by depositions, answers to interrogatories, or further
affidavits. When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or denials
of the adverse party's pleadings, but the adverse party's response, by affidavits
or as otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the adverse party does not so respond,
summary judgment, if appropriate, shall be entered against the adverse party.
- 12 -
(f)
When Affidavits are Unavailable. Should it appear from the affidavits of a
party opposing the motion that the party cannot for reasons stated present by
affidavit facts essential to justify the party's opposition, the court may refuse
the application for judgment or may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had or may make such other
order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the
court at any time that any of the affidavits presented pursuant to this rule are
presented in bad faith or solely for the purpose of delay, the court shall
forthwith order the party employing them to pay to the other party the amount of
the reasonable expenses which the filing of the affidavits caused the other party
to incur, including reasonable attorney's fees, and any offending party or
attorney may be adjudged guilty of contempt.
- 13 -
AMENDMENTS TO THE FEDERAL RULES OF CIVIL
PROCEDURE TO IMPLEMENT THE AGENDA
FOR CIVIL JUSTICE REFORM IN AMERICA
Rule 68 CJR Recommendation 4
Introduction
Proposed additions to Rule 68 of the Federal Rules of Civil Procedure to Implement
Recommendation 4 of the Agenda for Civil Justice Reform in America are underlined below and
deletions to the present rules are bracketed.
Rule 68. Offer of Settlement
At any time more than 20 days [before the trial begins, a party defending
against a claim] after the service of the summons and complaint on 8 party but not
less than 30 days (or 20 days if it is a counter offer) before trial, either party
may serve upon the [adverse party an offer to allow judgment to be taken against
the defending party] other party, but shall not file with the court a written
offer, denominated as an offer under this rule, to settle a claim for the money
[or] property or [to the effect] relief specified in the offer [with costs then
accrued.] and to enter into an agreement dismissing the claim or to allow judgment
to be entered accordingly. [If within 10 days after the service of the offer the
adverse party serves written notice that the offer is accepted, either party may
then file the offer and notice of acceptance together with proof of service
thereof and thereupon the clerk shall enter judgment. An offer not accepted shall
be deemed withdrawn and evidence thereof is not admissible except in a proceeding
to determine costs. If the judgment finally obtained by the offeree is not more
favorable than the offer, the offeree must pay the costs incurred after the making
of the offer.] The offer shall remain open for 30 days unless sooner withdrawn by
a writing served on the offeree prior to acceptance by the offeree. Acceptance or
rejection of the offer by the offeree must be in writing and served upon the
offeror. An offer that is neither withdrawn nor accepted within 30 days shall be
deemed rejected. The fact that an offer is made but not accepted does not
preclude a subsequent offer. Evidence of an offer is not admissible except in
proceedings to enforce a settlement or to determine sanctions under this rule.
When the complaint sets forth a claim for money, if the offeree rejects the offer
and the judgment finally obtained by the offeree was not at least ten percent more
favorable than the last offer, the offeree shall pay offeror's reasonable
attorney's fees and reasonable costs incurred after the rejection of the last
offer. When the complaint sets forth a claim for property or other non-monetary
relief, if the offeree rejects the offer and the judgment finally obtained by the
offeree is not more favorable than the last offer, the offeree shall pay offeror's
reasonable costs and reasonable attorney's fees incurred after rejection of the
last offer. [When the liability of one party to another has been determined by
verdict or order or judgment, but the amount or extent of the liability remains to
be determined by further proceedings, the party adjudged liable may make an offer
of judgment, which shall have the same effect as an offer made before trial if it
is served within a reasonable time not less than 10 days prior to the commencement
of hearings to determine the amount or extent of liability.]
This rule shall not apply to class or derivative actions.
- 14 -
AMENDMENTS TO THE FEDERAL RULES OF EVIDENCE
TO IMPLEMENT THE AGENDA FOR CIVIL JUSTICE
REFORM IN AMERICA
Rule 702 CJR Recommendations 19 . 20; 23
Introduction
Proposed additions to Rule 702 of the Federal Rules of Evidence to Implement
Recommendations 19 - 20 and 23 of the Agenda for Civil Justice Reform in America are underlined
below and deletions to the present rules are bracketed.
Rule 702
[If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form of an
opinion or otherwise.]
(a) Qualification of Expert Testimony. If the court finds
(1) that scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to
determine a fact in issue;
(2) that a proffered witness is qualified as an expert in the field for
which the expert is called to testify by knowledge, skill, experience,
training, or education; and
(3) that the proffered witness' testimony is based on a widely accepted
explanatory theory;
then the witness may testify thereto in the form of an opinion or otherwise.
(b) Prohibition on Contingent Fee for Expert Witness. A witness shall be
qualified under Rule 702(a)(2) only if the court finds that any compensation to
the witness directly or indirectly will not vary as a result of any outcome of the
case.
- 15 -
AMENDMENTS TO THE FEDERAL RULES OF APPELLATE
PROCEDURE TO IMPLEMENT THE AGENDA
FOR CIVIL JUSTICE REFORM IN AMERICA
Rule 35 CJR Recommendation 32
Introduction
Proposed additions to Rule 35 of the Federal Rules of Appellate Procedure to Implement
Recommendation 32 of the Agenda for Civil Justice Reform in America are underlined below and
deletions to the present rules are bracketed.
Rule 35. Determination of Causes by the Court in Banc
(a) When Hearing or Rehearing In Banc Will be Ordered. A majority of the
circuit judges who are in regular active service may order that an appeal or other
proceeding be heard or reheard by the court of appeals in banc. Such a hearing or
rehearing [is not favored and] ordinarily will not be ordered except (1) when
consideration by the full court is necessary to secure or maintain uniformity of
its decisions, (2) when a decision of the court is in conflict with the decision
of another federal court of appeals on the same matter or resolves a federal
question in a way in conflict with a state court of last resort, or [(2)] (3) when
the proceeding involves a question of exceptional importance.
- 16 -
COMMENTARY ON PROPOSED AMENDMENTS
COMMENTARY ON PROPOSED CJR
AMENDMENTS TO RULE 11 OF THE
FEDERAL RULES OF CIVIL PROCEDURE
Rule 11 of the Federal Rules of Civil Procedure protects the
integrity of submissions to the court. It requires that, on
penalty of sanctions, pleadings, motions and other papers be
based on a reasonable inquiry that the paper is well grounded in
fact; be warranted by existing law or good faith argument for the
extension, modification, or reversal of existing law; and that
the paper not be interposed for any improper purpose. The
proposed CJR amendment to Rule 11 broadens the court's power to
impose sanctions to check these abuses.
Rule 11 (a) extends the court's power to impose sanctions to
include attorneys who are not signatories of papers but who are
responsible for the truth of the content of the submission to the
court.
Rule 11 (b) imposes a continuing obligation to correct any errors
or falsehoods in signed documents upon learning of the error or
falsehood.
- 18 -
COMMENTARY ON PROPOSED CJR
AMENDMENTS TO RULE 16 OF THE
FEDERAL RULES OF CIVIL PROCEDURE
Rule 16 of the Federal Rules of Civil Procedure authorizes
pretrial conferences to permit courts to manage litigation
effectively. The proposed amendments to Rule 16 require early
pretrial conferences and strengthen the court's management of
cases through pretrial conferences. The proposed amendments
revise Rule 16(a), Rule 16 (c) and Rule 16(f).
Rule 16 (a) requires an early pretrial conference before the court
or a neutral third-party appointed by the court to discuss
settlement, possible use of alternative dispute resolution
procedures, and such other subjects as the court deems
appropriate.
Rule 16 (c) is amended to specify settlement and use of
alternative dispute resolution procedures as subjects to be
discussed at pretrial conferences.
Rule 16 (f) permits sanctions against unrepresented parties and
attorneys representing them for failure to participate in a
settlement conference in good faith. This subsection also is
amended to clarify that refusal to agree to any proposal made by
- 19 -
a party, standing alone, does not constitute failure to
participate in good faith in a settlement conference.
- 20 -
COMMENTARY ON PROPOSED CJR
AMENDMENTS RULE 26 OF THE
FEDERAL RULES OF CIVIL PROCEDURE
Rule 26 of the Federal Rules of Civil Procedure is the rule
containing general provisions governing discovery. The CJR
amendments to Rule 26 are designed to facilitate exchange of
limited basic information useful in formulating a discovery plan.
They will also permit the parties to reach the central issues in
dispute without extraneous, costly and unproductive disputes and
filings. Discovery subsequent to initial core disclosures is
limited, subject to exceptions specified in the rules, to avoid
abuse, and expert discovery is expanded to facilitate resolution
of the central issues. In addition, these amendments to Rule 26
add a flexible mechanism for developing discovery plans to
streamline and expedite litigation.
Subdivision (a) requires automatic early disclosure of "core
information" (i.e., the names of potential witnesses and the
location of directly relevant documents). Failure to disclose
the core information will bar a party from pursuing any discovery
absent a court order. The terms for relevance and personal
knowledge set forth in subdivision (a) are taken directly from
the Federal Rules of Evidence, and are intended to be interpreted
analogously. All persons known by the parties to have knowledge
of any fact of consequence must be identified. The fact that a
- 21 -
party does not intend to call a person as a witness is not meant
to be grounds for failure to make disclosure.
Subdivision (c) (4) (A), as amended, permits a more comprehensive
inquiry into expert witnesses' qualifications. Under the amended
rule a party may serve expert witness interrogatories to
determine the subject matter on which the expert is expected to
testify, the substance of the facts and opinions to which the
expert will testify, the expert's formal training, and the
expert's publications as well as the cases in which the expert
has testified or given a deposition. This subdivision also
allows for discovery of the expert's compensation, publications,
and expected testimony prior to trial.
Subdivision (c) (4) (B) allows a party to take an expert's
deposition prior to trial without court order.
Subdivision (c) (4) (C) permits a party to request all documents
the expert relies upon or has reviewed in preparation for his
testimony.
Subdivision (c) (4) (D) authorizes the court to order further
discovery subject to restrictions, including payment of fees and
expenses.
Subdivision (c) (4) (E) is the text of current Rule 26 (b) (4) (B).
- 22 -
Subdivision (c) (5) establishes reasonable presumptive numerical
limits on the number of interrogatories (15) and depositions
(10). The suggested limits may be waived by agreement of counsel
or modified by the court for good cause.
Subdivision (c) (6) relates to admissions of facts and confines
discovery to matters that are actually in controversy, thereby
helping to guard against discovery abuse.
Subdivision (e) (2) requires parties to explain the relevance of
requested materials through specific references to their
pleadings.
Subdivision (i) requires the parties to design a discovery plan
consistent with the numerical limits imposed by subdivision
(c) (5), unless other parameters have been agreed upon by the
parties or ordered by the court on good cause shown. Discovery
beyond that set forth in the plan may be taken only if the
requesting party pays all of the producing parties' reasonable
costs (including reasonable attorney's fees) caused by the
request.
- 23 -
COMMENTARY ON PROPOSED CJR AMENDMENTS
TO RULE 37 OF THE FEDERAL RULES
OF CIVIL PROCEDURE
Rule 37 of the Federal Rules of Civil Procedure sets forth
specific powers of the court to compel discovery and to impose
discovery sanctions. The CJR amendments provide a "Fairness
Rule" requiring the loser in discovery motion proceedings to pay
the prevailing party's attorney's fees. This result is achieved
by deleting language in subdivisions (a), (b) and (d) that bars
an award if a party's position is "substantially justified." " The
proposed rule includes an exception that would permit the court
to bar or limit fee-shifting if "special circumstances" would
make it "unjust."
An amendment to subdivision (e) requires the parties to confer
prior to seeking court intervention in a discovery dispute.
Taken together, these changes encourage both sides to evaluate
carefully their claims and defenses.
- 24 -
COMMENTARY ON PROPOSED CJR AMENDMENTS
TO RULE 56 OF THE FEDERAL RULES
OF CIVIL PROCEDURE
Summary judgment is a well recognized and useful method for
terminating litigation when there is no genuine issue of material
fact and the moving party is entitled to prevail as a matter of
law. Under the current Rule 56, some parties urge the court to
decline to enter summary judgment even if there is no genuine
issue of material fact. As amended, Rule 56 (c) precludes this
argument; the amended rule makes it plain that summary judgment
is mandatory in such cases.
Another amendment to subdivision (c) requires that judges make
explicit findings of fact. This amendment will encourage judges
to examine cases closely before granting or denying summary
judgment and will help focus issues for trial when summary
judgment is not granted. The amendments to subdivision (c) also
give greater weight to the trial court's findings when a material
fact exists by establishing a "clearly erroneous" standard for
reversal on appeal.
- 25 -
COMMENTARY ON PROPOSED CJR AMENDMENTS
TO RULE 68 OF THE FEDERAL RULES
OF CIVIL PROCEDURE
Rule 68, as amended, is intended to encourage dispute resolution
by giving parties incentives to offer and accept reasonable
settlement terms prior to trial. The revised Rule 68 provides
that either party may, before trial, serve on the opposing party
an offer to settle the dispute. It rewards careful evaluation of
settlements by requiring that the party rejecting the compromise
bear the opponent's additional costs of litigation, including
reasonable attorney's fees, unless that party obtains a judgment
that is 10 percent more favorable than the settlement offer (for
money claims) or is more favorable than the rejected offer (in
other than money claims).
This Rule does not apply to class or derivative actions.
- 26 -
COMMENTARY ON PROPOSED CJR
AMENDMENTS TO RULE 702 OF THE
FEDERAL RULES OF EVIDENCE
Unlike ordinary witnesses, who generally may offer only factual
testimony, expert witnesses are allowed to testify as to their
opinions. Expert opinion testimony, however, ought not to
contain unsupportable speculation. The expert's role as an
impartial and objective witness is fundamental. Thus contingency
fee arrangements with experts should be barred SO an expert
witness will not have any direct financial interest in the
outcome of the trial. The CJR Amendments effect these reforms by
amending Rule 702 of the Federal Rules of Evidence.
Subdivision (a) sets forth the requirements for testifying as an
expert in civil cases. Under the amendment, expert testimony may
be admitted if the court finds that specialized knowledge will
substantially aid the trier of fact. To testify as an expert, a
witness must be qualified in the "field for which the expert is
called" and the testimony must be "based on a widely accepted
explanatory theory." This requirement eliminates testimony that
is too far afield from current knowledge. It is contemplated
that this requirement may be satisfied by expert testimony that
is accepted by at least a substantial minority of experts in the
relevant field.
Subdivision (b) bars contingency fees for expert witnesses.
- 27 -
COMMENTARY ON PROPOSED CJR AMENDMENT
TO RULE 35 OF THE FEDERAL RULES
OF APPELLATE PROCEDURES
Rule 35 of the Federal Rules of Appellate Procedure would be
amended to delete the rule that rehearing in banc is disfavored.
The amended rule (subdivision (2)) would authorize rehearing in
banc when a decision of the court is in conflict with the
decision of another federal court of appeals or resolves a
federal question so as to conflict with a state court of last
resort.
- 28 -
A Report from the
President's Council on Competitiveness
Agenda for
Civil Justice Reform
in America
ACICE OF PLURIBUS THE UNUM STATES UNITED
August 1991
A Report from the
President's Council on Competitiveness
Agenda for
Civil Justice Reform
in America
August 1991
THE VICE PRESIDENT
WASHINGTON
MEMORANDUM FOR THE PRESIDENT
Oan Le
FROM:
THE VICE PRESIDENT
SUBJECT:
PRESIDENT'S COUNCIL ON COMPETITIVENESS
AGENDA FOR CIVIL JUSTICE REFORM IN AMERICA
On behalf of the President's Council on Competitiveness,
I am pleased to transmit our report, "Agenda for Civil Justice
Reform in America."
Throughout our history, the United States has cherished our
system of civil justice as one of the cornerstones of our free
and democratic society. It is our civil justice system that
protects the individual's rights to life, liberty and property by
providing all Americans an opportunity to be heard in an
impartial court of law.
In the past 30 years, our legal system has become burdened with
excessive costs and long delays. Many features of the current
legal system no longer serve to expedite justice or to ensure
fair results. Instead, overuse and abuse of the legal system
impose tremendous costs upon American society. Each year the
United States spends an estimated $300 billion as an indirect
cost of the civil justice system.
To address these problems, the Council established a special
working group, chaired by Solicitor General Kenneth W. Starr.
The working group's recommendations, which were unanimously
accepted by the Council, provide concrete steps that can be taken
to restore our civil justice system as an institution that is
fair to all and serves the ends of justice.
To implement these changes, the Council has recommended fifty
specific changes to our current civil litigation system. These
changes can be implemented through legislation, by amendment to
the rules of civil procedure and evidence, and through
administrative actions including an executive order. The Justice
Department is preparing the documents necessary for
implementation and will coordinate the Administration's civil
justice reform effort.
I am confident that these reforms will greatly reduce the burden
of excessive, needless litigation, while at the same time
protecting and enhancing every American's ability to vindicate
legal rights through our judicial system.
Introduction
Litigation and the
for the U.S. reconomy. A recent
article in Forbes estimates that in-
American Economy
dividuals, businesses and govern-
ments spend more than $80 billion
merica has become a
a year on direct litigation costs and
A
litigious society. In 1989
higher insurance premiums, and a
nearly 18 million new
total of up to $300 billion indirectly,
civil cases were filed in
including the cost of efforts to avoid
the state and federal
liability.
courts. This amounts to
Unrestrained litigation neces-
one lawsuit for every ten
sarily exacts a terrible toll on the
adults. In the
U.S. econo-
federal courts
my. Accord-
alone, the
Businesses and governments
ing to a re-
number of
cent report
spend more than
lawsuits filed
by a Pro-
each year has
$80 billion a year on direct
fessor of
almost
litigation costs
Finance at
tripled in the
the Univer-
last thirty
sity of Texas,
years - from
it is esti-
approximately 90,000 in 1960 to
mated that the average lawyer
more than 250,000 in 1990.
takes $1 million a year from the
This dramatic growth in litiga-
country's output of goods and
tion carries with it very high costs
services. These baleful effects are
Total Federal District Court Filings
300,000
251,113
250,000
200,000
197,710
150,000
127,280
100,000
89,112
50,000
0
1960
1970
1980
1990
SOURCE: Federal Courts Study Committee - Working Papers and Subcommittee Reports; July 1990, Vol. 2;
1990 filings; 1990 Federal Court Management Statistics.
1
Growth of the Legal Industry 1977-1989
400
382%
300
200
100
90.9%
40.0%
SOURCE: Survey of Current
Business, April 1991; U.S.
0
Department of Commerce.
AUTO
FOOD
LEGAL
Lawyers per 100,000 Population
300
281
250
200
150
111
100
82
50
11
0
JAPAN
ENGLAND
GERMANY
U.S.A.
AND WALES
SOURCE: Cambridge Law Journal, July 1990, Vol. 49 (2); Intro to Research in Japan, 1991.
2
not limited to the domestic economy.
Discovery
According to a 1984 study commis-
sioned by the U.S. Department of
Commerce, foreign competitors often
ver 80 percent of the time
have product liability insurance costs
American companies, more than
O
and cost of a typical lawsuit
that are 20 to 50 times lower than U.S.
involves pretrial exam-
companies. In a survey of over 250
ination of facts through
discovery. Discovery is the
stage of the lawsuit where
three-quarters of the executives said
they believe that the United States will
the parties are supposed to
obtain and preserve information
be increasingly disadvantaged in world
markets unless modifications are made
regarding the pending action, for later
use as evidence in the trial. The
in the liability system.
The adverse
current rules governing discovery
effects of
permit parties to
roam unfettered
unconstrained
The life of the average civil
through their
litigation are
legion. A recent
lawsuit in federal court - -
opponent's
most privaté
survey by the
Conference
from filing to completion - -
documents.
Board, a group of
is fourteen months.
An espe-
3,600 organi-
cially burden-
zations in over 50
some part of
discovery involves the taking of depo-
nations, reports that due to potential
sitions - interviews of witnesses taken
liability concerns:
under oath, often lasting several days
and occasionally even weeks. Another
47 percent of U.S. manufacturers
potentially intrusive and burdensome
have withdrawn products from the
discovery practice is the use of
market;
interrogatories. The most onerous
25 percent of U.S. manufacturers
aspect of discovery, however, is the
have discontinued some forms of
document demand, whereby litigants
product research;
can force their opponents to open all of
their file cabinets to inspection.
Approximately 15 percent of U.S.
Although discovery requests are
companies have laid off workers as a
relatively inexpensive to make, the
direct result of product liability
responding party's costs can be
staggering, involving the time of
experience.
employees to produce materials,
While some of these consequences
attorneys' fees for reviewing materials
result from meritorious lawsuits, the
to be produced, and the physical
unnecessarily high cost of litigation is
copying or recording costs.
undoubtedly a major factor as well.
There are currently no limits to the
The current procedural system adds
number of requests that a party can
costs by prolonging resolution of
make for discovery items, as long as
disputes and encouraging wasteful
the requests are at least tenuously
related to the action. In one antitrust
litigation.
case, the discovery stage lasted almost
3
a decade; the plaintiff's final pretrial
found that in 1985 the legal system
statement, which was over 10,000
incurred a total of $16-$19 billion in
pages long, cross-referenced approxi-
transaction costs to deliver $14-$16
mately 250,000 pages of documents.
billion to plaintiffs in net compensa-
The life of the average civil lawsuit
tion.
in federal court from filing to
completion is fourteen months.
Fully 77 percent of litigators in one
Expert Witnesses and
large American city acknowledged in a
"Junk Science"
1988 survey that they had used
discovery as an economic weapon
n area of the law
against their opponents. One result of
this lengthy process is that attorneys'
fees account for a substantial portion
A
particularly ripe for reform
is expert witness practice.
The Federal Rules of
of all recoveries. In fact, when all of
Evidence, which govern
the expenses of the litigation process
most expert testimony,
are added up, the claimants in tort
eliminated many of the
cases often end up with compensation
common law restrictions on the use of
that amounts to only a small
expert witnesses. The resulting
percentage of the total money spent.
uncontrolled use of expert witnesses
Professor O'Connell of the University of
has led to longer trials, more expensive
Virginia Law School estimates this
litigation, and a reduction in the quality
figure to be about 15 percent of total
of expert testimony in many cases.
litigation costs. A study by the Rand
It has also allowed "junk science" to
Corporation's Institute for Civil Justice
tarnish the legal process. Peter Huber,
Caseload for State Trial Courts
30,000,000
29,854,332
28,610,489
27,278,907
26,475,828
25,000,000
20,000,000
17,321,125
16,979,204
16,027,139
15,695,246
15,000,000
10,000,000
5,000,000
0
1986
1987
1988
1989
Civil cases
Total cases SOURCE: National Center for State Courts - Reported Caseloads for State Trial Courts.
4
a leading observer of American court-
gency fees to pay expert witnesses.
rooms, has written recently that
Although expert witnesses are sup-
"scientific frauds
are attempted
posed to give objective testimony
almost daily in our courts, and many
based on scientific evidence in order to
succeed." Huber wrote that "the most
help judge and jury resolve complex
fantastic verdict recorded so far was
matters, this practice easily turns too
worthy of a tabloid:"
many expert witnesses into "hired
"With the backing of 'expert' testi-
guns."
mony from a doctor and police depart-
ment officials, a soothsayer who decid-
ed she had lost her psychic powers
Punitive Damages
following a CAT scan persuaded a
Philadelphia jury to award her
n the past, punitive damages were
$1 million."
I
assessed only in cases where the
Stories such as this are becoming
defendant was proved to have had
almost commonplace. "Expert" wit-
a quasi-criminal intent to harm
nesses regularly offer their "scientific"
the plaintiff. Today, however,
opinions on the connections between
plaintiffs in civil lawsuits routinely
automobile accidents and breast can-
ask juries to award not only
cer or environmental pollutants and
compensatory damages (for their
"chemically induced AIDS". As if the
economic, or out-of-pocket losses) but
ability to fashion almost any opinion
also punitive damages. And juries are
into expert testimony were not enough,
responding with enthusiasm. A 1987
there is considerable use of contin-
study by the Institute for Civil Justice,
U.S. District Courts - Number (and %) of
Civil Cases Over Three Years Old
% of cases over
Number of cases
three years old
30,000
100
25,207
25,000
80
22,391
21,487
20,000
19,782
19,252
16,726
60
15,646
15,000
40
10,000
20
5,000
0
0
1984
1985
1986
1987
1988
1989
1990
Number of cases over three years old
Percent of cases over three years old
SOURCE: 1990 Federal Court Management Statistics.
5
which examined 24,000 jury trials in
The working group was composed
Cook County, Illinois, found that the
of representatives. from the White
average punitive damage award
House Counsel's office, the Domestic
increased, in inflation-adjusted dollars,
Policy Council, the White House Office
from $43,000 in 1965-69 to $729,000
of Policy Development, the Office of
in 1980-84 a jump of 1,500%. In
the Vice President, the Office of
personal injury cases, the rise has been
Management and Budget, the Council
even more dramatic.
of Economic Advisers, the
A prominent insurance lawyer in
Environmental Protection Agency, and
Washington has said that punitive
the Departments of Justice,
damages "have made civil litigation
Commerce, Treasury and Energy. In
sort of like the lotteries you have in so
June and July 1991, the Council acted
many states." Justice O'Connor and
on the working group's
Justice Scalia have observed that the
recommendations and formulated 50
"wholly standardless discretion" of
proposals for the nation's civil justice
punitive damages "appear[s] incon-
system.
sistent with due process." And former
Implementing the reforms proposed
Justices Brennan and Marshall noted
by the Council will bring direct
that juries "are left largely to them-
economic benefits to the United States.
selves in making this important and
The reforms will allow lawsuits to be
potentially devastating decision."
resolved quickly so that individuals and
Commenting on one particularly
companies will be able to redirect
shocking case, federal appeals court
assets that were formerly wasted on
Judge Alex Kozinski speculated: "I
frivolous and often defensive litigation.
suppose next we will be seeing lawsuits
Our economy and our country will
seeking punitive damages for
benefit.
maliciously refusing to return phone
calls or adopting a condescending tone
in interoffice memos."
The Federal Civil
Justice Working Group
n January 1991, a working group
I
on Federal Civil Justice Reform
was established under the aegis of
the Council on Competitiveness,
chaired by Vice President Dan
Quayle. The working group,
chaired by Solicitor General
Kenneth W. Starr, was asked to
examine the federal civil justice pro-
cess and to recommend efficient and
effective modifications to reduce
unnecessary litigation and to decrease
the costs and time required to resolve
legal disputes.
6
Council Recommendations:
An Overview
Voluntary Dispute
Discovery
Resolution
retrial discovery is frequently
ost potential litigants
M
consider only two
P
the source of needless delay
and expense. Currently
litigants have virtually unlimit-
avenues for dispute
ed ability to take sworn depo-
resolution: informal
sitions of witnesses, request
negotiation and litigation.
documents and submit written
The Council on
questions to parties.
Competitiveness recom-
The Council recommends several
mends providing greater access to
fundamental reforms to the discovery
alternative dispute
process,
resolution (ADR)
including
techniques that
More than 92 percent of all
disclosure of
would routinely be
civil lawsuits are
basic information
available as a
substitute for
settled
prior to trial
and an initial
round of
traditional litiga-
discovery that
tion. These
would continue to be "free" to the
techniques include (1) early neutral
requesting party. This would include
evaluation, (2) mediation, (3)
an extensive document request, a
arbitration, and (4) summary jury
limited set of depositions and written
trials. The Council also encourages the
questions. Beyond this initial round,
private sector to employ contract
however, the requesting party would
provisions establishing non-judicial
have to pay for additional discovery.
means of dispute resolution in order to
The Council also recommends that
introduce ADR into the corporate
greater sanctions be imposed if
process.
materials are wrongfully withheld.
Because more than 92 percent of
all civil lawsuits are settled or otherwise
disposed of prior to trial, the Council
encourages mandatory settlement
conferences soon after the commence-
More Efficient Trials
ment of any litigation. The Council
suggests that litigants be required to
itigation is sometimes
notify the opposing parties of their
the courts. These actions will enhance
L
necessary when the parties
intention to file suit before resorting to
are unable to resolve a dispute
through less formal means.
the possibility that disputes may be
The Council recommends
resolved amicably without the courts.
several reforms designed to
make trial practice more
efficient, including urging courts to set
early trial dates and to employ sum-
mary judgment procedures more
frequently to eliminate disputes that
can be properly resolved by legal
rulings alone.
7
Expert Evidence
allowed to assign a specific dollar
Reform
amount to their requests. Where there
is clear and convincing evidence of the
defendant's intent to cause injury, then
eform of expert witness
punitive damages may be awarded in
R
practice is also essential if
a separate phase of the proceeding. In
trials are to remain fair and
any event, however, the amount of
rational mechanisms for
punitive damages should not exceed
conflict resolution. One of
the plaintiff's actual damages.
the Council's principal
recommendations in this regard is to
Improved Use of
require expert testimony to be based
on "widely accepted" theories. This
Judicial Resources
would eliminate testimony unsup-
ported by professional practice or
he Council encourages courts
scientific knowledge. The Council also
recommends banning contingency fees
for expert witnesses. This should
I
to employ more efficient case
management techniques,
including flexible assignments
prevent expert witnesses from
of federal district judges. The
becoming mercenaries or advocates,
Council also encourages
instead of impartial and objective
greater emphasis on resolving
witnesses.
intracircuit conflicts. The Council has
proposed that
The Council recommends that
circuit courts
be maintained
greater sanctions be imposed if
at a manage-
materials are
able number
wrongfully withheld.
of judges, and
that the Ninth
Circuit, which
Punitive Damages
has almost thirty sitting judges, be split
into two circuits.
he current common law
I
approach to punitive dam-
ages frequently distributes
Enhanced Incentives
awards in a random and
capricious manner. While
for Reduced Litigation
some states have attempted
limited reform, the Council
n order to promote more
recommends a comprehensive pack-
I
disciplined and less wasteful
age designed to limit and restrict
litigation, the Council proposes to
punitive damages.
strengthen the current rules which
The Council recommends that
authorize judges to sanction
punitive damages be awarded in a
attorneys who file frivolous
rational and consistent manner as part
lawsuits.
of a coherent system. Plaintiffs seek-
The Council also recommends a
ing punitive damages should not be
test of a modified two-way fee-shifting
8
arrangement whereby the loser of a
Eliminating Litigation
lawsuit pays the costs incurred by the
winner. Although limitations would be
Caused by Poorly
built into this system to safeguard
Drafted Legislation
equal access to the courts, this reform
would encourage pretrial settlements
and impose market discipline on the
he Council recognizes that the
litigation process.
T
federal government bears a
The Council further proposes a
great deal of responsibility for
moratorium on the more than 150 one-
the rise in litigation caused by
way fee shifting statutes under which
poorly drafted federal
victorious plaintiffs recover their fees
statutes. The Council
from losing defendants, while
proposes that the Executive Branch
victorious defendants get no such
closely review all legislative proposals
recovery.
against a "litigation hazards" checklist.
Reducing Unnecessary
Burdens on Federal
Courts
he federal district and
T
appellate caseloads have
skyrocketed in the past
decade, creating endless
delays, and adding
substantially to the cost of
litigation. The Council has
proposed several reforms designed to
unclog the federal courts, including
revising the threshold for federal
diversity jurisdiction, restoring judicial
immunity to state court judges for
official actions, and reducing abuse of
habeas corpus petitions.
9
Council Recommendations
Implementation
he civil justice reforms
Administration will draft proposed rules
I
proposed by the Council. may
changes and submit the proposals to
be implemented through one
the Supreme Court's Rules Advisory
of several approaches. The
Committees.
five principal methods of
Some reforms can also be accom-
implementation are (1)
plished locally by the efforts of
federal legislation, (2)
individual judges. The Administration
revisions to the federal rules of civil
will make available innovative
procedure and evidence, (3) judicial
management procedures and provide
action, (4) model state legislation and
technical assistance to support these
rules, and (5) executive action. Some
suggestions.
of the proposed reforms can be
Although the reforms contemplate
implemented through more than one
Federal law and rules changes, many
approach. Changes to the discovery
of the reforms may be equally appli-
process, for example, may be
cable to state court systems. The
accomplished either by federal statute
Administration will draft model legis-
or through rule changes. Most reforms
lation and model rules changes so that
are also suited to model state statutes,
these reforms may be implemented at
particularly because they permit
the state level.
reforms suggested for the federal
The Administration is committed to
systems to be applied in the
the fair, efficient, and early resolution of
state courts.
disputes. To underscore this commit-
The Administration will draft legis-
ment, the Administration will apply
lation to implement these recom-
many of the suggested reforms to the
mendations and will work with Con-
conduct of litigation by federal
gress toward reform. Other changes
agencies.
will require amendment to the Federal
Rules of Civil Procedure, the Federal
Rules of Evidence, and the Federal
Rules of Appellate Procedure. The
10
Table of Recommendations
VOLUNTARY DISPUTE RESOLUTION
1. Promote Voluntary Use of Alternative Dispute Resolution (ADR) Techniques
Provide a Choice for Resolving Disputes: Create Multi-door Courthouses (1)
Promote Greater Awareness of ADR (2)
2. Require Notice Prior to Filing a Lawsuit (3)
3. Encourage Earlier Settlement of Contested Cases
Provide Incentives for Settlement Offers (4)
Expand Settlement Opportunities Through Settlement Conferences (5)
DISCOVERY
4. Reforms to the Pre-Trial Discovery Process
Require Disclosure of "Core Information" (6)
Adopt Presumptive Numerical Limits on Discovery (7)
Additional Discovery Governed by Market Incentives (8)
Penalize Abusive Discovery (9)
Encourage Parties to Admit Facts Not in Dispute (10)
Tie Discovery Requests to the Pleadings (11)
5. Resolving Discovery Disputes: Reform of Discovery Motions
Require Parties to Consult Before Seeking Court Intervention in Discovery
Disputes (12)
"Loser Pays" Rule in Discovery Motions (13)
6. Maintain Safeguards for Trade Secrets (14)
MORE EFFECTIVE TRIAL PROCEDURES
7. Early Trial Dates (15)
8. Summary Judgment Reforms
Mandatory Summary Judgment (16)
Provide Appropriate Deference to Trial Court Findings (17)
9. Hands-on Docket Management (18)
EXPERT EVIDENCE REFORM
10. Reform the Rules Regarding Expert Witnesses
Require "Widely Accepted" Theories (19)
Bar Contingency Fees for Expert Witnesses (20)
Require Additional Disclosure from Expert Witnesses (21)
Permit Depositions without Leave of Court (22)
Expressly Require Courts to Determine that the
Expert is Qualified in the Field of Testimony Offered (23)
Resist Efforts to Make Use of Court-Appointed Experts Mandatory (24)
11
PUNITIVE DAMAGES
11. Reform of Unlimited Punitive Damages
Eliminate Dollar Amounts from Pleadings (25)
Split Punitive Damages Trials into Two Phases (26)
Adopt a Clear and Convincing Evidence Standard (27)
Judicial Determination of the Amount of Punitive Damages (28)
Cap on Punitive Damages Awards (29)
IMPROVED USE OF FEDERAL JUDICIAL RESOURCES
12. Flexible Assignments for District Court Judges (30)
13. Enhance Case Management Techniques (31)
14. Encourage Use of En Banc Panels to Resolve Conflicting Decisions
Eliminate Restrictions on En Banc Panels (32)
End the Use of Mini-Panels for En Banc Review (33)
15. United States Courts of Appeals Should be Maintained at Manageable Levels/
Reducing the Size of the Ninth Circuit
Cap the Size of Courts of Appeals at Reasonable Levels (34)
Split the Ninth Circuit Court of Appeals (35)
ENHANCED INCENTIVES FOR ENCOURAGING MERITORIOUS
LITIGATION
16. "Loser Pays" Rule for Attorney's Fees in Diversity Cases (36)
17. Strengthen Sanctions Against False Court Filings: Rule 11 Reform
Retain Current Rule 11 Sanctions (37)
Include Non-Signer Liability in Rule 11 Sanctions (38)
Correction of Subsequently-Detected False Statements (39)
Uniform Standards for Rule 11 (40)
18. Towards More Efficient Attorney's Fees Statutes
Moratorium on One-Party Pay Statutes (41)
Reducing Time Spent Litigating Attorney's Fees
Provide Clear Standards for Awards (42)
Indexing Uniform Fee (43)
REDUCING UNNECESSARY BURDENS ON FEDERAL COURTS
19. Reforming Diversity Jurisdiction
Amount-in-Controversy Based on Economic Damages (44)
Indexing Amount-in-Controversy (45)
20. Restore Full Judicial Immunity to State Court Judges for Judging Cases (46)
12
21. Reduce Frivolous and Unnecessary Prisoner Lawsuits
Reform of CRIPA to Èncourage Greater Voluntary Resolution of Inmate
Grievances (47)
Habeas Corpus Reforms (48)
Protect the Waiver of Fees Process: In Forma Pauperis (49)
ELIMINATING LITIGATION OVER POORLY DRAFTED LEGISLATION
22. Reduce Poor Draftsmanship in Legislation (50)
13
Recommendations
VOLUNTARY DISPUTE
Although the parties would be given
opportunities to elect ADR, they would
RESOLUTION
not be required to do so. This volun-
tary approach avoids the danger of
1. Promote Voluntary Use of
creating an additional, and costly,
Alternative Dispute Resolu-
obstruction through which litigants
must first travel before they enter the
tion (ADR) Techniques
litigation system.
Action Required: Encourage and
Provide a Choice for Resolving
facilitate judicial action.
Disputes: Create "Multi-door
Courthouses"
Promote Greater Awareness of
ADR
Recommendation: Create a "multi-
door courthouse" to permit the parties
Recommendation: Members of the
to choose between several different
legal, business, and government
methods for resolving their dispute.
communities should advocate dispute
Before the contest would be set for trial,
resolution techniques as an alternative
the parties would attend a mandatory
to litigation. (2)
conference to identify the areas in
controversy. At this conference the
The primary advantage of alternative
parties would be given the opportunity
dispute resolution is that it allows
to resolve their claims through a
parties to avoid the time and expense
variety of alternative dispute resolution
of formal court proceedings. Unfortu-
mechanisms, including early neutral
nately, this benefit may not be ade-
evaluation, mediation, arbitration,
quately publicized. Lawyers, business
minitrial, and summary jury trial. (1)
leaders, and government officials
should take the initiative in
Alternative Dispute Resolution (ADR)
disseminating the important message
seeks to resolve controversies with less
that ADR achieves justice.
cost and burden imposed upon the
parties. Remedies fashioned through
Action Required: Executive Branch
ADR may be more flexible than the
applies recommendation to federal
restricted relief available through the
agencies. Encourage actions to
courts. Because ADR frequently relies
increase public awareness.
upon consensus, its use may foster
continuing relationships.
2. Require Notice Prior to
Requiring the parties to explore ADR
Filing a Lawsuit
options at the initial stages of the
proceedings will motivate attorneys to
Recommendation: In most cases, the
analyze the case and prepare basic
right to sue should be conditioned on a
investigative homework at a much
showing that the parties have attempt-
earlier point than would be required by
ed, and failed, to resolve their dispute.
the traditional system. Because this
The party alleging harm would be
approach can help promote settle-
required to prove that it gave timely
ment, there could also be a reduction
notice of the grievance prior to filing
in transaction costs.
the suit, except where emergency or
15
other circumstances require immediate
Expand Settlement Opportunities
resort to the courts without prior notice
Through Settlement Conferences
to the opposing party. (3)
Recommendation: Once a lawsuit has
A pre-complaint notice requirement
been filed, the parties should be requir-
provides both parties with an oppor-
ed to attend regular conferences to
tunity to resolve the dispute at the
discuss settlement. (5)
earliest stages. The parties would have
the opportunity to reach an agreement
Mandatory settlement conferences
and fashion appropriate remedies at
lower transaction costs and without the
would compel the parties to reevaluate
their claims and litigation position.
constraints of court. At the same time,
These required meetings are currently
the dispute would be resolved without
used with success in several judicial
burdening the court.
districts. They promote settlement
earlier because there are more oppor-
Action Required: Propose legislation
tunities to focus issues. Mandatory
to amend appropriate federal statutes.
conferences also overcome posturing
by lawyers who perceive that initiating
3. Encourage Earlier Settle-
settlement discussions, even in the
ment of Contested Cases
most appropriate cases, will be seen as
a sign of weakness.
Provide Incentives for Settlement
Action Required: Encourage judicial
Offers
action.
Recommendation: Both parties
should be encouraged to evaluate
their claims closely and attempt to
DISCOVERY
settle their dispute. Settlement offers
advanced prior to trial should be
reinforced with financial incentives
4. Reforms to the Pre-Trial
such as requiring the party who re-
Discovery Process
jected the compromise bear the
additional costs of trial unless the
outcome at trial exceeds the settlement
Require Disclosure of "Core Infor-
offer. (4)
mation"
The party continuing to maintain an
Recommendation: Parties should be
improperly evaluated claim would be
required to disclose basic (or "core")
forced to pay the expenses of con-
information, such as the names and
tinuing prosecution after receiving a
addresses of people having knowledge
reasonable settlement offer. This
likely to bear on the claims and
reform creates incentives to make
defenses and the location of documents
settlement offers early and compen-
most relevant to the case. This require-
sates parties who make good faith
ment would obligate the parties to
offers that are nonetheless rejected.
make disclosure on their own initiative.
Should the core information not be
Action Required: Propose amend-
provided, the offending party would
ments to Federal Rule of Civil
not be able to engage in any
Procedure 68 and Title 28 of United
additional discovery. (6)
States Code.
16
Mandatory early disclosure of core
After reviewing the core information
information recognizes that in the vast
exchanged, the parties would meet to
majority of cases there are basic facts
formulate a plan that would limit and
that should be exchanged by the
direct discovery efforts within preset
parties in order to reach a satisfactory
limits. Presumptive quantitative limits
resolution and that this exchange
on discovery, established in the rules,
should be accomplished without
would set the outer boundaries of the
gamesmanship or expense. This early
plan unless good cause for additional
exchange would increase the opport-
inquiry is established. The parties
unity for effective discovery planning
would then submit a discovery plan to
and early settlement discussions.
the court for approval. Either party
would be able to pursue additional
Providing early disclosure of core
discovery by paying the costs its
information eliminates unnecessary
opponent would incur in producing the
filings and delays in exchanging basic
information.
information. Disclosure would be
accompanied by the attorney's
This approach would require the
certification that reasonable inquiry
litigants to evaluate carefully their
had been made and that the
additional discovery requests because
information will be supplemented if
paying production costs would
additional details become known.
discourage marginal or abusive
discovery. It also allows the parties
Action Required: Propose amend-
significant opportunities to conduct
ments to Federal Rule of Civil
discovery without judicial intervention.
Procedure 26.
Action Required: Propose amend-
Presumptive Numerical Limits on
ments to Federal Rule of Civil
Discovery, with Additional
Procedure 26.
Discovery Governed by Market
Incentives
Penalize Abusive Discovery
Recommendation: Amend the Federal
Recommendation: After the disclosure
Rules of Civil Procedure to establish
of core information, discovery should
clear standards for imposing sanctions
be conducted within presumptive
upon attorneys who abuse the system.
quantitative limits and a market-based
The party whose conduct necessitated
framework. The parties would be
the discovery motion would bear the
required to formulate a discovery plan
burden of establishing that its position
within predetermined numerical limits.
was substantially justified. Sanctions
The parties would then be entitled to
would be automatic in instances
conduct any additional discovery,
where the court finds an unreasonable,
provided that each party would pay
vexatious, or abusive discovery
the opponent's "production" costs.
practice. (9)
Judges would be permitted to change
the pre-set limits and review costs for
While the current rules allow the court
good cause. (7-8)
to impose penalties upon attorneys,
judges should be encouraged to make
Parties should have access to relevant
greater use of sanctions for discovery
information but should not be able to
abuse. At present, judges have the
use discovery to impose needless costs
upon an opponent.
17
authority to impose costs (including
the discovery by referring to the
attorney's fees) incurred in responding
portion of the complaint, answer or
to an abusive discovery request, but
other relevant pleading to be
most judges remain reluctant to levy
addressed in the desired discovery.
sanctions for unreasonable or vexa-
(11)
tious discovery. Making the imposition
of sanctions mandatory provides a
Requiring parties to explain the rele-
further disincentive to litigants who
vancy of materials being sought in
would abuse the discovery process.
discovery encourages them to assess
whether the request is necessary. This
Action Required: Propose amend-
also provides the responding party the
ments to Federal Rules of Civil
ability to evaluate the request in light of
Procedure 26, 37. Recommend
the issues in the case. Additionally,
judicial efforts to make discovery
this procedure would help focus areas
sanctions more uniform and
in controversy should resort to court be
predictable.
necessary to decide the discovery
dispute.
Encourage Parties to Admit Facts
Not in Dispute.
Action required: Propose amend-
ments to Federal Rule of Civil
Recommendation: After a party has
Procedure Rule 26.
admitted factual information, further
discovery should not automatically be
allowed. The court should have
5. Resolving Discovery Dis-
authority, where appropriate, to
putes: Reform of Discovery
prevent further inquiry regarding the
Motions
area admitted. (10)
Admissions sharpen the dispute by
Require Parties to Consult Before
narrowing the contested issues. Parties
Seeking Court Intervention in
should be encouraged to admit facts or
Discovery Disputes.
authenticate documents. Only the
most marginal purpose would be ad-
Recommendation: Before requesting
vanced by allowing further inquiry
that the court resolve a discovery
once reliable factual information has
dispute, counsel should be required to
been admitted. Preventing discovery
certify that they have conferred with
of admitted facts will eliminate the
their opponent and, despite good faith
potential for repetitive and abusive
negotiations, are unable to agree upon
inquiry.
a resolution. (12)
Action Required: Propose amend-
This proposal, currently used in many
ments to Federal Rule of Civil
federal and state courts, would require
Procedure 26(b).
efforts by attorneys to avoid burdening
the court with resolving unnecessary
Tie Discovery Requests to the
discovery disputes. It recognizes that
Pleadings
discovery should be structured to
minimize judicial intervention to
Recommendation: In making discov-
resolve most pre-trial disputes. As the
ery requests, the parties should be
certification requirement places a
compelled to supply the rationale for
18
premium upon cooperation,
by legislative action or rules changes.
acceptable compromises often result.
(14)
Action Required: Propose amend-
Most courts have broad authority to
ments to Federal Rule of Civil
grant "protective" orders that forbid the
Procedure 26. While awaiting full rule
disclosure of confidential or trade
amendment, encourage judicial
secret information required to be
action, through adoption of local rules
divulged in preparation for trial. Pro-
or standing orders.
tective orders enable the parties to
learn confidential information neces-
"Loser Pays" Rule for Discovery
sary to their cases while prohibiting
Motions
them from using the knowledge out-
side the lawsuit. Legislatures should
Recommendation: When the court
resist efforts to limit the ability of
decides a discovery motion, the losing
courts to grant this relief because these
party would pay to the winner the
orders allow parties to discover the
costs and attorney fees to vindicate the
facts necessary to prepare and eval-
prevailing position. As with the other
uate a case for trial, but protect the
"loser pays" provisions, this cost and
legitimate confidentiality interest of the
fee shifting could be limited by judicial
parties.
discretion where appropriate. (13)
Action Required: Oppose repeal
Requiring reimbursement to the
efforts. Propose amendments to
prevailing party encourages both sides
state codes where authority has been
to evaluate carefully their claims and
restricted.
defenses. This is particularly true for
discovery, which is intended to be self-
enforcing. Under the previous recom-
MORE EFFECTIVE
mendation, discovery motions could
only be pursued after the parties
TRIAL PROCEDURES
certified their inability to resolve their
dispute. Fee-shifting for discovery
motions will be an added incentive for
7. Early Trial Dates
the parties to limit unnecessary dis-
covery and should help discourage
Recommendation: Judges should
abusive discovery practices.
establish an early trial date imme-
diately after the initial pleadings are
Action Required: Propose amend-
completed. Once established, the trial
ments to the Federal Rules of Civil
date should be delayed only for
Procedure.
compelling reason or the needs of the
court. (15)
6. Maintain Safeguards for
One of the most effective remedies to
Trade Secrets
the costs of the litigation system is
establishment of rigid trial dates. Trial
Recommendation: Courts should
dates have a galvanizing effect on
retain the ability to preserve confi-
attorneys and parties alike; estab-
dential and trade secret information.
lishing the date promptly and firmly
These safeguards should not be eroded
reduces the occasions for delay and
19
gamesmanship. A side-benefit of this
Action Required: Propose amend-
cost-free reform is more efficient use of
ments to Federal Rule of Civil
discovery and the potential reduction
Procedure 56.
of other litigation expenses. This
reform need not mean that a "rocket
Provide Appropriate Deference to
docket" with very small allowances for
Trial Court Findings
discovery would be utilized.
Recommendation: Courts of appeals
Action Required: Encourage judicial
should accord greater deference to the
action.
trial court findings whether a genuine
issue of material fact exists. (17)
8. Summary Judgment
Reforms
The trial court's discretion in reviewing
the factual record should be more
extensively recognized by the appellate
Mandatory Summary Judgment
courts. This acknowledgment would
not only demonstrate an appreciation
Recommendation: Courts must grant
that trial judges are more knowledg-
summary judgment when there is no
able about the dispute than appellate
genuine dispute as to any material fact
judges, but, more importantly, would
and the party is entitled to prevail as a
also assist the court system in dis-
matter of law. The presiding judge
posing of nonmeritorious cases at an
must state reasons for denying or
earlier stage in the proceedings.
granting a motion for summary
judgment. (16)
Action Required: Propose amend-
ments to Federal Rule of Civil
Summary judgment is a method for
Procedure 56.
resolving cases where the facts are not
in dispute. Under Supreme Court
precedent, federal courts are com-
9. Hands-On Docket Manage-
pelled to grant summary judgment
ment
when there is no genuine issue of
material fact. Under the current rule,
Recommendation: Judges should
however, even when it is determined
take a hands-on approach to case
that there is no valid factual disagree-
management. Their active involve-
ment, the judge may refuse to dispose
ment in the discovery process and
of the case. In addition to conforming
other pre-trial matters should be
the rule to Supreme Court precedents,
encouraged. (18)
it would eliminate unnecessary liti-
gation expenses if judges were required
By adopting a "hands-on" policy
to make explicit findings concerning
towards case administration, including
the existence of a factual dispute and
the management of discovery, trial
to grant summary judgment when no
judges can play a vital role in expe-
conflict exists. Because the judge
diting litigation and reducing costs.
would be required to make specific
Active involvement by judges early in
findings even when factual questions
the proceedings is one of the most
remain, the finding will help focus the
effective ways to reduce the time
factual issues for trial.
required to resolve a dispute. When
judges efficiently manage their cases,
20
they assist the parties in resolving their
Action Required: Propose amend-
disputes. Hands-on management
ments to Federal Rule of Evidence
policies have resulted in increasing
702.
settlements within nine months of filing
to nearly 85 percent in some courts.
Bar Contingency Fees for Expert
Witnesses
At the same time, the Council's recom-
mended system of discovery incentives
Recommendation: Ban contingency
should make the judge's job easier.
fees (compensation in return for a
The market-based approaches are
"successful outcome") for expert
designed to be largely self-enforcing.
witnesses. (20)
Action: Encourage greater judicial
An expert witness should have no
involvement.
financial interest in any outcome of a
case in which he or she testifies. This
reform is designed to keep expert
EXPERT EVIDENCE
witnesses from becoming mercenaries
REFORM
or advocates, instead of remaining
impartial and objective.
10. Reform the Rules Regard-
Action Required: Propose amend-
ing Expert Witnesses.
ments to Federal Rule of Evidence
702.
Require "Widely Accepted"
Theories
Require Additional Disclosure
from Expert Witnesses
Recommendation: Require expert
testimony to be based on "widely
Recommendation: Permit more
accepted" theories. A party would
comprehensive inquiries of proposed
have to prove that its expert's opinion
"expert" witnesses through inter-
is based on an established theory that
rogatories and disclosure of additional
is supported by a significant portion of
core data, including a list of the ex-
experts in the relevant field. (19)
pert's publications and a description of
the compensation arrangement. (21)
This revision is designed to eliminate
testimony that is far afield from main-
Compared to the discovery of other
stream professional practice or current
witnesses, discovery of experts is
scientific knowledge. Currently,
very limited. Litigants should be
"expert" witnesses are permitted to
able to scrutinize experts by obtaining
offer testimony even if their theories
more information about them
are unproven and are not corroborated
automatically - - namely, a list of
by other experts. The Council's
publications and a description of the
recommendations would allow
expert's compensation arrangement,
testimony based on respected minority
without cost to the opposing party.
or majority theories while excluding
fringe theories.
Action Required: Propose amend-
ments to Federal Rule of Civil
Procedure 26.
21
Permit Depositions without Leave
away from juries or force the use of
of Court
court-appointed experts. (24)
Recommendation: Additional expert
Judges already have the ability to call
discovery such as depositions for ex-
on experts. Mandating their use could
pert discovery should be permitted,
lead to concerns about judicial favori-
subject to the market incentives regime
tism, particularly in jury trials.
outlined above. (22)
Action Required: Oppose repeal
Currently, discovery, of experts requires
efforts.
a court order if accomplished through
deposition. The Federal Rules of Civil
Procedure should provide for deposi-
PUNITIVE DAMAGES
tion of experts without need for motion
of court. Depositions are particularly
useful for civil expert witnesses.
11. Reform of Unlimited
Punitive Damages
Action Required: Propose amend-
ments to Federal Rule of Civil Proce-
Recommendations: Punitive damages
dure 26.
should be awarded in a rational and.
consistent manner as part of a coher-
Expressly Require Courts to Deter-
ent system. Plaintiffs seeking punitive
mine that the Expert is Qualified
damages should not be able to assign
in the Field of Testimony Offered
specific dollar amounts to their request.
Rather, punitive damages should be
Recommendation: Require courts to
awarded in a separate proceeding.
determine that proposed expert wit-
A jury should determine whether
nesses are legitimate experts in their
punitive damages are warranted
field before they are permitted to testify.
based only on "clear and convincing"
(23)
evidence supporting an award; the
trial judge should determine the
This revision would involve judges
amount of punitive damages. The
directly in protecting cases in their
amount of punitive damages should
courtrooms from unqualified experts.
not exceed the full amount of the
It should have the effect of discour-
compensatory damages. (25-29)
aging parties from retaining unqualified
experts
The common law method of assessing
punitive damages has developed vir-
Action Required: Propose amend-
tually without restriction. Lacking a
ments to Federal Rule of Evidence
unifying structure, the current
702.
approach to punitive damages will
continue to generate disproportionately
Resist Efforts to Make Use of
high awards in a random and capri-
cious manner. Because punitive
Court-Appointed Experts Manda-
damages are "quasi criminal," an
tory
award should be predicated upon
standards of proof requiring some ele-
Recommendations: Resist attempts to
ment of intent. Other limitations are
take the review of expert testimony
needed to restrict the measure of puni-
22
tive damages that can be levied in any
13. Enhance Case Manage-
single case.
ment Techniques
These reforms reduce the threat of
Recommendation: To ensure cost-
runaway jury verdicts, promote settle-
effectiveness, federal, judges should
ments, and promote certainty in
commercial transactions by estab-
utilize procedures to speed manage-
ment of cases after a lawsuit has been
lishing reasonable boundaries for
awards. This unified approach will
filed. (31)
insure that punitive damages are
effective in deterring and punishing
Many courts have adopted procedures
for speeding the processing of cases
extreme or egregious conduct.
and for resolving disputes earlier.
Continued innovation should be
Action Required: Encourage state
legislative action by means of a model
encouraged within the judiciary to
state code.
process cases efficiently and fairly.
The Federal Rules of Civil Procedure
should continue to retain the flexibility
to permit tests of promising case
IMPROVED USE OF
management approaches.
FEDERAL JUDICIAL
Action Required: Encourage judicial
RESOURCES
action. Provide necessary technical
support.
12. Flexible Assignments for
District Court Judges
14. Encourage Use of En
Banc Panels to Resolve
Recommendation: Encourage more
Conflicting Decisions
efficient use of judicial resources
through temporary judicial reassign-
ments. Judges from less busy districts
Recommendations: Eliminate
should be assigned to districts where
restrictions that prevent en banc panels
there is a more crowded docket. (30)
where all sitting judges on a federal
appeals court jointly decide important
Many district courts experience a
legal issues. The use of "mini-panels"
disproportionate influx of cases from
with less than a full compliment of
time to time. The result has been
judges as a substitute for en banc
significant backlogs in some areas and
panels should be eliminated. (32-33)
underutilization in others. The judi-
ciary can address this problem by
En banc hearings occur infrequently
creating a flexible system that would
because they are discouraged by the
temporarily transfer judges in response
current rules. As both the number of
to high caseload demand.
appellate judges and cases have
increased, most cases are decided by
Action Required: Propose legislation
3-judge panels. All too frequently,
to amend Title 28 United States
separate 3-judge panels in the same
Code.
circuit answer the same questions
differently. The resulting uncertainty
from these conflicting decisions
23
increases litigation. Eliminating the
ENHANCED INCEN-
restrictions from the current rule to
encourage more frequent use of the en
TIVES FOR ENCOUR-
banc process would help promote
AGING MERITORIOUS
consistency in the law.
LITIGATION
Action Required: Propose amend-
ments to Federal Rule of Appellate
16. "Loser Pays" Rule for
Procedure 35.
Attorney Fees in Diversity
15. United States Courts of
Cases
Appeals Should be Maintained
at Manageable Levels/
Recommendations: Adopt a "loser
pays" rule in cases involving state law
Reducing the Size of the
brought under the federal courts' diver-
Ninth Circuit
sity jurisdiction. The loser would pay
the winner's legal expenses incurred in
vindicating its prevailing position,
Recommendations: To avoid the
subject to two limitations: 1) fee
potential for inconsistent decisions
shifting would be restricted to the
within the same judicial circuit, the
amount of fees the loser incurred and
number of judges on each federal
2) could be further limited by judicial
circuit court of appeals should be
discretion where appropriate. (36)
maintained at a manageable level. The
Ninth Circuit should be divided into
Adopting a "loser pays" rule for
smaller circuits. (34-35)
payment of attorney's fees will provide
those bringing suit with a choice of
Beyond a certain number of judges,
methods to finance their litigation. The
the ordinary operation of a circuit court
rule would help fund meritorious claims
of appeals becomes unwieldy. The
not currently initiated because the cost
ability to issue clear guidance is often
of pursuing the claim would have ex-
diminished in relation to the number of
ceeded the expected recovery. The
different decisionmakers. A limit on
"loser pays" rule (sometimes called the
the number of judges assigned to a
English Rule) is grounded in fairness -
single circuit would help ensure a more
in the equitable principle that a party
manageable - and more productive -
who suffers should be made whole.
court. For example, the Ninth Circuit
Where the rule operates, it also
Court of Appeals, currently stretching
prompts more realistic case evaluation.
from Montana to Guam with twenty-
Because the losing party will be obli-
eight judges, should be divided in
gated to pay the winner's fees, this
smaller circuits. Previously, other
approach will encourage litigants to
circuit courts of appeals have been
evaluate carefully the merits of their
split when the number of judges
cases before initiating a frivolous claim
became unmanageable.
or adopting a spurious defense.
Action Required: Propose legislation
The "loser pays" rule approach
to amend Title 28 United States
recommended would limit the amount
Code, Section 44.
a losing party might have to pay to the
sum it expended in litigating the suit.
24
This would prevent a party from
ered, the parties should be obligated to
incurring disproportionate expenses for
supply correct information. Further,
the purposes of penalizing the loser.
Rule 11 should apply not only to the
Limiting the application of the "loser
lawyer who signs the pleading, but also
pays" rule to federal diversity cases
to any other lawyers responsible for the
provides an option for those litigants
falsehood.
desiring that each party pay its own
attorney fees to pursue their cases in
Action Required: Propose amend-
the state courts. Thus, this recom-
ments to Federal Rule of Civil
mendation will not impact federal
Procedure 11.
statutory rights such as civil rights and
environmental protection statutes.
18. Towards More Efficient
Action Required: Propose legislation
Attorney's Fees Statutes
to amend Title 28 United States
Code.
Moratorium on One-Party Pay
Statutes
17. Strengthen Sanctions
Against False Court Filings:
Recommendation: Impose a
Rule 11 Reform
moratorium on statutes that award
attorney fees only to the party who
initiated the lawsuit and subsequently
Recommendations: The present
prevails. Pending a review of the
attorney sanctions provision, Rule 11,
current statutes, subsequent statutes
should be retained. Courts should
with attorney fees provisions should be
have the power to penalize those
advanced only with substantial policy
responsible for making unfounded
justification, including cost-benefit
assertions in filings with the court, not
analysis. (41)
merely the attorney who signs the
document. All parties and their
Over 150 different federal statutes
counsel should be required to correct
provide attorney's fees and costs if the
any unfounded assertion immediately
party bringing the suit prevails, yet fail
upon learning of the inaccuracy.
to compensate the party who has to
Courts should apply sanctions in a
defend itself from nonmeritorious
uniform manner. (37-40)
allegations. The potential award of
fees may well increase the likelihood of
Rule 11 is an important reminder to
frivolous litigation. No additional "one-
litigants to avoid filings with insufficient
way" statutes should be enacted
legal or factual support. The rule
without a thorough examination of the
provides an important deterrent to
benefits and burdens they may cause.
frivolous conduct and should be
retained and strengthened.
Action Required: Executive Branch
imposes recommendation on all
Some courts currently construe Rule
federal agencies; encourage Congres-
11 to apply only to knowledge at the
sional restraint.
time the document was filed, while
other courts require parties to correct
filings when they learn of error. When-
ever an error or falsehood is discov-
25
Reduce Time Spent Litigating
diversity jurisdiction of the federal
Attorney's Fees
courts should be based on the amount
of economic damages alleged. This
Recommendations: Amend the Equal
jurisdictional amount should be
Access to Justice Act (EAJA) to
indexed to the rate of inflation. (44-45)
provide clear standards for the award
of attorney's fees caused by vague and
The jurisdiction of federal courts
conflicting statutory guidance. The
extends to cases involving state law
statute should specify that a uniform
only when the parties are citizens of
fee rate be applied absent exceptional
different states. The statute estab-
circumstances. The uniform rate
lishing jurisdiction based on diversity of
should be indexed to the rate of
citizenship now requires that at least
inflation. (42-43)
$50,000 be in dispute to ensure that
only the more significant cases are
The Equal Access to Justice Act
heard in federal court.
(EAJA) allows the award of attorney's
fees to those who prevail in litigation
Resort to the federal court should be
against the government. Because the
based on the possibility of demon-
statute does not provide clear guid-
strable economic harm rather than
ance, additional court hearings are
speculative wrongs. In addition,
required to set the proper amount of
indexing the monetary threshold to the
fees. This needless satellite litigation
rate of inflation would eliminate the
could be eliminated by amending
need for repeated congressional action
EAJA to replace its vague and
to revise the jurisdictional amount.
conflicting standards. The rate of
attorney compensation should be
Action Required: Propose legislation
consistent, clearly set forth in the
to amend Title 28 United States
statute, and altered only in limited
Code, Section 1332.
instances for good cause. Adjusting
the uniform fee awardable in relation to
20. Restore Full Judicial
a national index would eliminate the
need for annual revision.
Immunity to State Court
Judges for Judging Cases
Action Required: Propose legislation
amending the Equal Access to Justice
Recommendation: Enact legislation to
Act, Title 28, United States Code,
restore judicial immunity to state court
Section 2412.
judges for the fees and costs they incur
in defending their official actions. (46)
REDUCING UNNECES-
The Supreme Court has held that state
SARY BURDENS ON
court judges may be held liable for
attorney's fees and costs under the
FEDERAL COURTS
Civil Rights Attorney Fees Awards Act
of 1976. The threat of this liability
19. Reforming Diversity Juris-
places an enormous and needless
burden on state judges who fear
diction
personal liability for decision they
make in their official capacity as
Recommendations: The amount in
judges.
controversy required to invoke the
26
Action Required: Propose legislation
Action Required: Propose legislation
to amend Title 42 of the United
to amend Title 42 of the United
States Code, Section 1983.
States Code, section 1997e; Title 28
of the United States Code, Sections
21. Reduce Frivolous and
1915, 2244, 2254, and 2255.
Unnecessary Prisoner
Litigation
ELIMINATE LITIGA-
Recommendations: States should be
TION OVER POORLY
encouraged to use administrative
DRAFTED LEGISLA-
procedures to resolve inmate
grievances. Abusive prisoner litigation
TION
should be limited by restricting the
number of habeas corpus petitions an
22. Reduce Poor Draftsman-
inmate may file and by waiving court
filing fees only when the petitioner
ship in Legislation
demonstrates a substantial chance of
prevailing. (47-49)
Recommendations: All proposed laws
should undergo a "litigation hazards"
In 1988 over 10 percent of the federal
review to insure that poor drafting of
civil docket were prisoner civil rights
legislation does not create unnecessary
cases. Many prisoners use the federal
litigation. (50)
courts to harass prison officials or to
delay their sentencing.
Each year thousands of laws are
proposed. Too frequently, poor drafting
The vast majority of these cases
leaves routine areas e.g., statute of
challenge conditions of confinement in
limitations or standards of proof,
state institutions and can be resolved
unaddressed. These ambiguities and
without resort to the federal court.
omissions result in uncertainty and
States should be encouraged to adopt
court challenges.
grievance dispute measures that
adequately substitute for judicial
The federal government should
hearings. The Civil Rights of Institu-
develop a list of errors to be avoided in
tionalized Persons Act ("CRIPA")
legislation and should apply the
should be amended to remove un-
checklist to all proposed laws. Where
necessary barriers to effective
appropriate, the government should
grievance procedures.
make more consistent use of bright-
line tests to reduce ambiguities which
Inmates also abuse the writ of habeas
may lead to litigation. These steps will
corpus (which allows federal courts to
help promote certainty and will reduce
review state court convictions) by
the work of the courts.
repeatedly filing almost identical
actions. Reasonable standards,
Action Required: Executive Branch
requiring the consolidation of all issues,
imposes recommendation on federal
are needed. As another method to
agencies and adds screening to
discourage abusive filings by inmates,
current legislative review efforts;
courts should also examine closely
encourage Congressional restraint.
requests to waive filing fees.
27
The Federal Civil Justice Reform Working Group
Chairman
Kenneth W. Starr
Solicitor General, Department of Justice
Members
Alden Abbott
Department of Commerce
Diana Culp Bork
Department of Justice
Stephen Bransdorfer
Department of Justice
Barbara Bruin
Department of Justice
Jay Bybee
Office of White House Counsel.
Robert Damus
Office of Management and Budget
E. Donald Elliott
Environmental Protection Agency
Lisa Farringer
Department of Justice
Dennis Foreman
Department of the Treasury
J. Mark Gidley
Department of Justice
John L. Howard
Counsel to the Vice President
Charles E. M. Kolb
White House Office of Policy Development
Peter Kostiuk
Council of Economic Advisers
Jay Lefkowitz
Domestic Policy Council
Marianne McGettigan
White House Office of Policy Development
David McIntosh
President's Council on Competitiveness
William G. Myers III
Department of Justice
Richard Porter
Domestic Policy Council
Richard Schmalensee
Council of Economic Advisers
Stephen Wakefield
Department of Energy
Wendell L. Willkie II
Department of Commerce
President's Council on Competitiveness Staff
The Council is staffed by the Office of the Vice President with support from members.
Allan B. Hubbard serves as Executive Director.
Acknowledgement
Special thanks to the Department of Justice for making the publication of this report
possible.
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