This is the second of our two-part interview with US Magistrate Judge Kristen Mix, of the United States District Court for the District of Colorado. In the first installment, we addressed the lack of visibility into e-discovery costs, predictive coding, e-discovery competence and what impact, if any, judicial emphasis on proportionality will have on litigation.
Below we discuss ways to enforce the concepts embedded in the new federal rules amendments, and how to shore up the structural challenges to the legal justice system.
On the coming impact of the e-discovery amendments to the Federal Rules
Mix: I’m hopeful the rules will have a really significant effect. I really like the fact that cooperation and proportionality have been moved to the forefront. Those concepts should be on everybody’s mind when they come to court for the first opening gambit, which in federal court, is often the scheduling conference. I think it’s important to emphasize those concepts. I think, frankly, they have been deemphasized and, in certain circumstances, cast aside by courts and counsel. I’m a fan of the changes and I hope they produce results.
“I think, frankly, the concepts of cooperation and proportionality have been deemphasized and, in certain circumstances, cast aside by courts and counsel.”
I know that when I have emphasized proportionality and cooperation to counsel in scheduling conferences, those expectations have been largely met. Again, there are outliers. There are lawyers who want to do it their way or whose clients want to do it a certain way, and who don’t take a hint, so to speak. But I think when a judge emphasizes that those are the principles on which the case is going to be run, and it’s going to be run that way from the beginning, you can get results.
I’m hoping that judges and lawyers start to view these changes to the rules as giving them permission, in effect, to address those concepts at the very beginning, and to be serious about them. I certainly take them that way.
On what other measures must accompany rule changes to bring about their desired effects
Mix: Judges really have to start thinking about cost-shifting. Cost-shifting is something that has always been lurking in the background with discovery issues. Obviously the rules address it, explicitly in some places. But especially when it comes to e-discovery, there are some clients who basically won’t take no for an answer and who insist on this scorched earth approach.
And my view of that is that probably an argument for relevance can be made with respect to a lot of electronic discovery, especially in a case where there’s some kind of business dispute and emails related to the business dispute could be in possession of 50 custodians for a period of five years or something like that. It’s hard not to conclude that those emails might possibly be relevant. But if a client is going to insist on obtaining all those emails, at a certain cost, I think judges need to be thinking about who’s going to pay the cost.
Traditionally the Federal Rules impose the cost on the producing party, but my view is that arguments can be made in certain circumstances where the discovery sought is relevant but arguably expensive that the requesting party pay some of the cost.
That’s one way courts can incentive cooperation and also information sharing, because frankly, it’s difficult for any party to assess how much it’s going to cost to get to electronic discovery unless the producing party is frank about how much electronic discovery exists, in what format, what it would cost to gather, and how many man hours would be involved. That conversation has got to occur in order for there to be a real understanding about what the cost of getting this stuff is, and I’m hopeful that if cost is brought to the forefront, that will encourage parties and counsel to talk more extensively about what they really need and how they’re going to get it.
On the frequency with which cost-shifting is discussed in her own courtroom
Mix: Less than half the time. But on any given day, if I have three discovery hearings, I’ve probably talked about cost in at least one of those three. And the attorneys are probably talking about cost in one of those three as well. It’s just seems to be a topic that has come to the fore when addressing these issues because it does get very expensive. And I think some lawyers approach the philosophical issue and the legal issues about electronic discovery without considering cost. If they haven’t considered cost, it is frequently raised by the other side — and then there is a conversation about cost that will occur.
On the the types of behavior that will get counsel and parties in her “dog house”
Mix: It’s pretty simple. If you haven’t read my orders and you’re not following them, I’m not going to be very happy with you. If you haven’t read my practice standards despite the fact that I take great pains to tell the lawyers about my practice standards and refer them to my practice standards and impress upon them the importance of reading my practice standards — which really just relate to discovery — that’s not a good sign!
I don’t like to be interrupted. I try hard not to interrupt the lawyers as well. That’s another faux pas in my courtroom. But aside from those kind of obvious things, there isn’t much. I expect lawyers to be prepared. I expect them to be serious. I expect them to be familiar with my practice standards and my orders. I like them also to be familiar with the area of law that we’re addressing. I’d like them to be familiar with what the district judge assigned to the case expects, which often takes the form of written practice standards in our court. So that’s kind of the baseline. If you don’t have those things under your belt, you’re probably not going to get a warm reception.
On the impact of the decline of trials in the federal court system (Judge Mix is a faculty member for the National Institute for Trial Advocacy (NITA))
Mix: The fact that many cases don’t go to trial and that a lot of lawyers don’t have real trial experience has a detrimental impact on the justice system as a whole. This is an art. It is a skill as well. But, really, the best trial lawyers are those that understand the art of a trial. You get better at it the more you do. When lawyers don’t get frequent practice at trials, all kinds of things happen. For example, there is a much greater emphasis on discovery and, in my view, obtaining information that is not necessary for the trial of the case. There are larger fights about discovery because of this. There’s too much repetition in the actual trial itself and the jury gets tired and bored — and starts to get resentful after a while about why are we spending so much time here to hear the same thing five or six or seven times.
It’s a problem. And I’m a great fan of NITA and of all continuing legal education programs that make a real effort to educate lawyers about how to conduct trials. I’m a great fan of mock trials for students and for younger lawyers. I’m a great fan of interaction between a real trial judge — a judge who conducts trials on a regular basis — and members of the trial bar for educational purposes. But there is nothing that’s a complete substitute for trial experience. And the fact that the overwhelming majority of civil cases do not go to trial does has a detrimental impact on the justice system because, overall, the process of justice becomes much less efficient when lawyers don’t know and don’t understand how to try cases. It’s a continuing problem.
“The fact that the overwhelming majority of civil cases do not go to trial has a detrimental impact on the justice system because, overall, the process of justice becomes much less efficient when lawyers don’t know and don’t understand how to try cases.”
On whether she perceives an economic bias in federal courts, and what can be done to make justice more accessible to parties of lesser means
Mix: I do think it’s expensive to bring a case in federal court for the most part. I think that the courts have made every effort to try to address some of the most significant issues as they relate to economic disparity. For example, pro se litigants can obtain IFP (in forma paupers) status and be excused from paying filing fees. There is not a requirement in our court that a pro se litigant have a lawyer unless the pro se party is a corporation, when they must be represented by counsel. They are still permitted in this court to represent themselves. That’s cheaper, usually.
We also have programs for the appointment of pro bono counsel in cases that merit that type of appointment. We work with the law schools and their pro bono clinics to try to appoint counsel for prisoners, for example, and others. Pro bono clinics on the whole — such as the incredibly successful one in Los Angeles — are an excellent way to help level the playing field by helping to match (parties of lesser means) with the resources they need.
So, as a system, I think the federal courts are aware that there are vast economic disparities between parties — that federal court is much more affordable for some parties than for others. And some programs and policies have been set in place to try to address those disparities.
How effective the programs and policies are, I can’t really say. I know that in our court, there are far more pro se litigants who want pro bono counsel than we are able to provide. I’m very grateful every time pro bono counsel step up to the plate and take a pro se case. I remember being a lawyer in private practice and feeling both the desire and the pressure to serve as pro bono counsel, and wanting to do a lot more in that regard than I actually could. And I think many lawyers feel that way. I think it’s a real pressure point for them.
So we have some issues about how to make federal court more accessible in lower-value cases. Obviously the amount in controversy requirement has to be changed by Congress, so if there isn’t $75,000 in controversy, the case won’t be brought in federal court on the diversity matter. But aside from that, we have to continue to try to address ways to make this court and all federal courts across the country more accessible for indigent people….
“The last thing we want to do is make federal court a court for only economically elite litigants.”
It’s a continuing issue to be aware of and to continue to strive and address. Because the last thing we want to do is make federal court a court for only economically elite litigants. That is not the way it should be. Access to justice is critically important to everyone in our society. It’s important for the rule of law and it’s important, in my view, for overall government in a democracy.
As told to Robert Hilson, a director at Logikcull. He can be reached at firstname.lastname@example.org.
To learn more about the implication the new rules will have for attorney malpractice and sanctions, check out the webinar below.