Thursday, March 31, 2011

New Rules

In an ideal world, we would have fewer and simpler rules. In that spirit, I offer the following rough draft of my proposed new rules of civil procedure. Some of these ideas might even work in the real world, and they are not as different from current practice as may first appear. As shown by the links, I have discussed many of these ideas in previous posts.

1.  A case is initiated by filing a "notice of dispute."
2.  The notice may be served by any means reasonably calculated to give actual notice.
3.  The respondent must either (1) acknowledge there is a dispute,  or (2) deny there is a dispute. This can be indicated by checking the appropriate box at the bottom of the notice of dispute form.
4. If the respondent denies there is a dispute, the parties must submit an agreed form of resolution to the court within 30 days.
5. If the respondent fails to respond, the court will require preparation of a default judgment with appropriate notice determined by the court, and an additional opportunity for the respondent to be heard.
6. If the respondent agrees that there is a dispute, the parties are required to confer prior to the first court appearance to determine an appropriate means of resolving the dispute, and submit their preferences by form.
7.  After filing this preference form, the parties must appear before a facilitator to determine an appropriate means of dispute resolution.  These include mediation, arbitration, and trial with or without a jury. If the parties cannot agree, the facilitator will determine the initial means of dispute resolution.
8.  Parties choosing arbitration, or ordered to arbitration, have the option of making it binding or advisory.
9.  Parties choosing mediation, or ordered to mediation, retain the right to trial if they are not able to resolve the dispute in mediation.
10. There will be no additional pleadings unless allowed by the court.
11.  No motions of any kind will be filed except by court permission.
12.  The parties must disclose all documents they intend to use at trial, and identify all witnesses. The parties may have only whatever additional discovery they can agree upon, or whatever the court allows. All discovery disputes will be resolved by mediation, except that the court of course retains the power to enforce its orders allowing additional discovery.
13.  No expert witnesses are allowed except by agreement, or by court permission.
14. Parties may be required to submit a list of the factual issues in dispute, and the legal issues that must be determined by the court. The court may allow either or both parties to submit a request that the case be adjudicated without trial, which is subject to the standards formerly applicable to summary judgment motions.
15. All trials must be concluded within 5 court days, unless the court allows a longer time.
16. Appeals will also be first submitted to a facilitator, who will assist the parties with compiling the issues on appeal, determining an appropriate briefing schedule and other requirements, and recommending mediation or another procedure for resolving the appeal.

I think that about covers it. The law book publishers might not like these rules, but everyone else might appreciate being able to carry around the entire code of civil procedure on a handy card. I recognize that there are certain necessary procedures, such as injunctions and class actions, that don't fit comfortably within the spirit of these rules. I'm going to continue to ponder those issues and perhaps deal with them in a later post.

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