US Supreme Court Raises Pleading Standards

While this case may appear to be of interest only to civil procedure mavens such as myself, I think it has broader implications. In the Bell Atlantic Corp. v. Twombly case issued this week, the Supreme Court took it upon itself to overrule its own long-standing precedent, Conley v. Gibson, or at least that part of Conley v. Gibson that everyone cites in response to almost every motion to dismiss a complaint I have ever seen in Federal Court. That is the rule that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Bell Atlantic is an antitrust case alleging a conspiracy to restrain trade. Such a conspiracy may be inferred from parallel behavior or other circumstantial evidence. The plaintiff in Bell Atlantic had alleged such a conspiracy, but had done so in somewhat conclusory terms. That is no longer good enough, according to the Supreme Court.

Two things are striking to me about this result. One is that the Supreme Court seems to be moving away from the premise of notice pleading that was one of the foundations of the reforms heralded by the Federal Rules of Civil Procedure. Something more than notice pleading is now clearly required. Another perhaps anomalous consequence of this decision is that the threshold pleading requirements in many cases may now be more difficult to meet than the burden of proof required at trial. In other words, a plaintiff might be allowed to prove a case to a jury based on circumstantial evidence, but some plaintiffs may never get the opportunity to hand such a case to a jury, because the complaint will not survive a motion to dismiss.

The practical result is that we will see a lot more motions to dismiss the complaint being filed in federal court after Bell Atlantic, just as we started seeing even more motions for summary judgment after the Supreme Court decisions a few years back encouraging the dismissal of claims on summary judgment.

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Discovery (as we know it) Should be Abolished!

It is our system of obtaining discovery that makes litigation so expensive. And most of it serves no purpose except to make the parties so sick of the lawsuit itself that they might be more likely to consider settlement. I think it is time to clean the house of discovery rules, in a sweeping manner, much as the Federal Rules of Civil Procedure were originally intended to simplify and streamline the litigation process. At least as pertains to discovery, those rules have not worked as intended, and many of the reforms to those rules have only further encrusted them with additional procedure, and additional opportunities to create conflict and delay. For example, sanctions provisions enacted in the 1980's were intended to reduce the need for discovery motions, but in many cases have only created an impetus for additional motions. The mandatory exchange of information at the outset of the case, an idea promulgated in the 1990's, was intended to reduce the need for a cycle of requests, responses, and motions, but has often created just a preliminary round of procedure before the good old-fashioned discovery wars start. New rules pertaining to electronic discovery, enacted in the 2000's, were intended to clarify the applicability of the rules to electronic databases, but does anyone seriously think these rules are going to reduce the cost and complexity of discovery litigation?

More radical reforms should be considered. How much worse would it be if we simply abolished all the discovery rules, and replaced them with a rule which simply states that the parties are entitled to all the discovery they agree upon, and to the extent they cannot reach agreement, they are entitled to all the discovery the court allows. Such a rule would encourage, and in fact require, the parties to work out a master discovery plan at the outset of a case. It would immediately send cases down a path of negotiation instead of litigation, thus supporting the mediation programs that are becoming the norm in most courts. To the extent one or both sides are uncooperative in exchanging information, there would still be no need for serving discovery demands, objections, meet and confer letters, and motions. These activities could all be replaced by relatively simple requests to the court, most of which could be accommodated on forms. The courts, having the experience of decades of discovery practice to guide them, could use this past experience as a guideline in deciding exactly what depositions, document requests, and interrogatories should be permitted in each case. Gamesmanship, blame and sanctions should be avoided in all but the most difficult cases. And even in those cases, the burden on the parties and the courts should be reduced by explicit recognition of the fact that the discovery you get is merely what you can agree on, or in the absence of agreement, what the court allows you to get. All of the complicated rules and procedures we have now for obtaining depositions, document request, and interrogatories, merely obscure that simple truth.

This proposal may be scary to many lawyers, but I would instead view it as liberating. Instead of spending much of our time on the drudgery of preparing requests, responses and motions, and viewing every discovery effort as an opportunity to battle with the other side, we would instead spend our time on either negotiating with the other side to resolve issues, or preparing the case for trial with a minimum of wasteful litigation activities. Maybe more cases would be tried instead of "litigated," and most cases would still be settled as they are today. Isn't that what we trial lawyers are supposed to be doing?

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Fire in my "backyard"

Griffith Park is the largest urban park in the US, and I am lucky enough to live within walking distance. Last night it turned into a mass of fire and smoke. I spent the evening walking around outside talking to my neighbors and hoping the wind would continue to blow away from my house. Since there was no power, I could not turn on the tv to see what was going on, so I walked to the corner where a tv news truck was parked. The news reporter had very little information himself but that didn't stop him from getting on tv and questioning some of my neighbors who also had very little information to give. He interviewed one woman on camera who talked about how long she had lived in the community and how much she liked it. The reporter asked her how scared or nervous she now was about the fire. Now there may be some truth to the idea that here was a beautiful community threatened by a big, scary fire, but from what I saw, the message the tv reporter was trying to project was exactly the opposite from what was occurring. In fact, in our daily lives, neighbors generally have little contact with one another, because we tend to stay inside and watch tv, and when we go out, we get directly into our cars, continuing to isolate ourselves. It took a fire to get people outside and talking together as a community. I met some of my neighbors for the first time, and talked to others to whom I had not spoken in months. And while the fire was scary, the truth was that the firefighters had the situation well in hand, and were doing a great job containing it. We really didn't have that much to worry about. And the park will survive. In fact, the park probably needs periodic fires to survive. It seems that television encourages us to stay "safe" inside while projecting images of a big, scary world out there. The solution is probably to watch less television.

This morning I took a couple of pictures of Los Feliz Boulevard without cars, a sight you never see on a weekday morning. It was quiet and beautiful.

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