Arthur Miller has written a new article, published in the NYU Law Journal titled, Simplified Pleading, Meaningful Days In Court, and Trials On the Merits: Reflections on the Deformation of Federal Procedure.
The article discusses the lengthy transformation of the federal courts from trial-oriented to paperwork-oriented. Miller discusses the increased focus on pleading and summary judgment. He also discusses the structures put in place to settle cases by the federal courts, designed to get rid of cases on the docket and to reduce the workload of the courts.
Miller believes that these changes have harmed plaintiffs by narrowing the law and restricting precedent. In my view, he is correct. Far more cases are dismissed or settled than go to trial. Both litigants and judges are often afraid of trials. Settlement also allows judges to avoid making hard decisions. They can’t be criticized for a settlement. They can be criticized for a decision made at a trial to admit hearsay or to reject a document as not a business record.
Edward X. Clinton, Jr.
http://www.clintonlaw.net
Edward X. Clinton, Jr.
fedcivilprocedure 