Pretrial Discovery Research Articles

민사전자소송에서 리걸테크의 활용에 관한 연구

Electronic litigation is a combination of civil litigation and electronic systems. Electronic litigation consists of e-filing, e-case management, and e-court room. In Korea, electronic litigation is operated in accordance with ｢Act on the Use, etc. of Electronic Documents in Civil Litigations, etc.｣, and the proportion of electronic litigation in civil case in 2021 is 97.3%. On October 2019, the Supreme Court established a next-generation electronic litigation promotion team and aims to complete the next-generation electronic litigation system construction project in the second half of 2024.
 Meanwhile, LegalTech is a term that refers to a new legal service industry that combines legal and technology, and has recently attracted a lot of attention.
 It is difficult to accurately measure the stage of development of science and technology, but the most advanced legal technology tools at the current stage are actively used in the fields of tax law, labor law, and patent law. These legal fields have independent, bureaucratic, and technical characteristics. However, it is not limited to this, but legal technology tools are also used in ordinary daily life such as traffic accidents.
 Nevertheless, due to the technical limitations of Legal Tech, it is expected that it will be able to function as a kind of very competent lawyer rather than complete automation. Most llegal technology tools are expected to operate within the paradigm of cognitive computing defined by human-machine collaboration. The development of legal technology tools in the United States is closely related to the adversarial system of civil litigation, and the system in which the parties take the lead in collecting evidence at the stage of pre-trial discovery can be seen as the background of the competitive development of the legal technology industry.
 In civil litigation in Korea, the formation of the contents of the trial is based on adversarial system, but in terms of the progress of the lawsuit, inquisitorial system is adopted so that the court takes the initiative to lead the hearing. In other words, the use of legal technology is likely to depend on the judgment of the court and the decision of the legislator, so there will be a limit to the size of the legal technology market to grow like the United States. If there is sufficient means of collecting evidence between parties, such as discovery system in US, the legal technology industry can take a leap forward.

Taxation of legal costs: Is a cost creditor shielded by legal professional privilege?

Taxation of legal costs in the high courts of South Africa is a quasi-judicial proceeding during which a Taxing Master assesses the fairness of a bill of costs, quantifies the amount payable to a cost creditor, and issues an allocatur which certifies the sum payable by a cost debtor. It is argued that this legal process, which is regulated by Uniform Rule 70 read with Uniform Rule 69, implicates a cost debtor’s fundamental right, under s 34 of the Constitution of the Republic of South Africa, 1996, to fair dispute resolution at any independent forum. In terms of Uniform Rule 70(3B) (a), prior to the enrolment of a bill for taxation, a cost debtor is entitled ‘to inspect such documents or notes pertaining to any item on the bill’. This article argues that the inspection envisaged is a pre-taxation discovery procedure aimed at enabling a cost debtor to determine which items on a bill of costs are objectionable, and the grounds therefor. With reference to relevant judicial precedent and the established principles of interpretation, this article hypothesises that, having regard to the clear, unambiguous, peremptory language of Uniform Rule 70(3B)(a), as well as the purpose sought to be achieved by the right of inspection, the law has, in this context, excluded the operation of the cost creditor’s common-law right to assert legal professional privilege as regards documentation pertaining to any item claimed in the bill of costs. This is unlike the position prevailing at a pre-trial discovery procedure catered for in Uniform Rule 35. This article also argues that, in accordance with s 39(2) of the Constitution, the broad construction of the right of inspection under Uniform Rule 70(3B)(a) advanced here promotes both a cost debtor’s fundamental right in s 34 of the Constitution, and the values of justice and the rule of law which are deeply imbricated in the Bill of Rights.

Discovery in Japan


 
 
 

Discovery in Japan

Practitioners and scholars have, for years, extolled the difficulties of discovery in civil litigation in Japan. The Japanese Code of Civil Procedure makes “all information presumptively non-discoverable.” In Japan, “nothing is discoverable unless such action is specifically permitted by law.” In Japan, there is no “so-called pretrial discovery as seen in the U.S. system.” Those statements, while perhaps once true, no longer reflect litigation as currently practiced. Some twenty years after Japan amended its Code of Civil Procedure to permit greater discovery, civil litigation commonly includes discovery, if defined to include both information and evidence gathering procedures. Litigants seek production of police records, medical records, chat logs, meeting minutes, peer review reports, computer code — the same kinds of information requests that wind their way through pre-trial processes in discovery-rich jurisdictions like the United States. How this happens though is markedly different. Japanese law offers a patchwork of discovery devices, scattered across its Code of Civil Procedure and substantive laws. Some are used regularly; some rarely. In most cases, discovery is not self-executing. The Japanese courts act as gatekeepers, and, in doing so, they swing the door to the courthouse open wider in some cases than others. This paper explores the role of discovery in civil litigation and the resource-intensive role of the courts as gatekeepers. It also proposes an alternative: moving from discovery to disclosure in routine litigation.

The Original Writing (Best Evidence) Rule: A Primer

Article X of the Federal Rules of Evidence codifies what has misleadingly been named the “Best Evidence Rule”, a rule of preference for the production of the original of a writing, recording or photograph when the contents of the item are sought to be proved. Secondary evidence establishing the content of the item is admissible only if the absence of all originals is adequately explained. “Where proof is to be made of some fact which is recorded in a writing, the best evidence of the contents of the writing consists in the actual production of the document itself. Any proof of a lower degree is secondary evidence which will be received as proof only where nonproduction of the writing is properly ac-counted for. The contents of a written instrument may not, as a general rule, be proved by parole, unless the failure to produce the paper itself is accounted for. The principle is controlling in every case wherein it is sought to prove the contents of written instruments of any kind whatsoever.” 20 Am.Jur., Evidence § 406 at 366–67 (1939). Better described as the “Original Writing Rule”, the rule is limited to writings, recordings, and photographs, Fed.R.Evid. 1002; there is no general rule of evidence that a party must produce the best evidence which the nature of the case permits. The rule developed at common law to provide a guarantee against inaccuracy and fraud by insistence upon production at trial of original documents. The emphasis is upon assuring accuracy as to the terms of the writing, recording, or photograph by avoiding the uncertainties of recollection which are inherent in oral testimony, avoiding the chances of mistake which may be present in the handmade copy, and reducing the risk of inaccuracy associated with lack of sincerity. “The modern justification for the rule has expanded from prevention of fraud to a recognition that writings occupy a central position in the law. When the contents of a writing are at issue, oral testimony as to the terms of the writing is subject to a greater risk of error than oral testimony as to events or other situations. The human memory is not often capable of reciting the precise terms of a writing, and when the terms are in dispute only the writing itself, or a true copy, provides reliable evidence. To summarize then, we observe that the importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplication are the concerns addressed by the best evidence rule. See 5 Louisell & Mueller, Federal Evidence, § 550 at 283; McCormick on Evidence (3d ed. 1984) § 231 at 704; Cleary & Strong, The Best Evidence Rule: An Evaluation in Context, 51 Iowa L. Rev. 825, 828 (1966).” Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1319 (9th Cir.1986). Over time the scope of the rule was broadened to reflect modern reliance on photographic, mechanical, and electronic recording devices and sophisticated methods of data compilation, storage, and retrieval, Fed.R.Evid. 1001. While the great expansion of pretrial discovery has measurably reduced the need for the rule, it still has significant application in criminal cases where a greater limitation on discovery exists, as well as in unanticipated situations. Appellate consideration of issues concerning application of the Original Writing Rule must be made in light of the purpose of the rule to secure the most reliable information as to the contents of a writing, recording, or photograph. Thus, before any technical violation of the Original Writing Rule will be held reversible error, counsel must at least be in a position to assert that there is a good faith dispute as to the existence or content of the writing, recording or photograph. Absent such representation, any error is clearly harmless. The requirement of production of the original when the contents are in issue is contained in Fed.R.Evid. 1002; Fed.R.Evid. 1003 provides for admissibility of a duplicate under most circumstances. Definitions of both the terms original and duplicate, along with that of writings, recordings, and photographs, are provided in Fed.R.Evid. 1001. Fed.R.Evid. 1004 states the circumstances under which the original is not required. The functions of the court and jury with respect to the Original Writing Rule are addressed in Fed.R.Evid. 1008. Fed.R.Evid. 1005, 1006 and 1007 concern related issues involving public records, summaries and admissions of a party-opponent respectively.

Fallen Superheroes and Constitutional Mirages: The Tale of Brady v. Maryland

This essay is based on a lecture given as part of the McGeorge School of Law's Distinguished Speaker Series. The essay examines Brady v. Maryland as one of the Warren Court's criminal procedure cases that has taken on superhero status, announcing not only an important procedural right, but doing so in ringing moral terms that forever associate the right with the case. In Brady, the majority crafted its holding that an accused has a constitutional right to exculpatory evidence as embodying the prosecutor's ethical duty to pursue justice and not simply victory in the courtroom. By crafting the opinion in this way, Brady joined cases like Gideon, Miranda and Mapp as opinions that possess special rhetorical power because they are expressly founded upon fundamental values like equality, human dignity, and the morality of government. This essay argues, however, that subsequent cases have largely robbed Brady of its superhero powers as a pre-trial discovery doctrine. By setting a very high threshold before exculpatory evidence becomes material and must be turned over - evidence that could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict - the Court essentially has turned Brady from a pre-trial discovery device into a post-trial safety net to catch cases of government misconduct. Indeed, the essay suggests that the materiality standard is now so high that a prosecutor who discovers true Brady evidence prior to trial should ethically be considering dismissal of the charges, let alone the need to turn the evidence over to the defense. Because of Brady's limited usefulness as a pre-trial source for discovery, the essay urges that we not let the mirage of a constitutional right to discovery keep us from debating the need for broader discovery through statutory discovery rights and the rules of criminal procedure.

Grounded on Newly Discovered Evidence

Though amended several times, Federal Rule of Criminal Procedure 33 has always provided a period of years to move for a new trial on the basis of “newly discovered evidence,” while requiring that other new trial motions be filed within days after verdict. The circuits disagree, however, as to what kinds of claims can be raised in a “newly discovered evidence” motion, and, assuming that such a motion is not limited to evidence going to the merits of the charges, as to the standard that must be met to obtain relief when the evidence concerns an asserted violation of the defendant’s rights. For example, although the Supreme Court has recognized that the effective assistance of counsel is a crucial safeguard against wrongful conviction, several circuits hold that ineffective-assistance claims cannot be raised in “newly discovered evidence” motions. Another circuit, the Eighth, interprets Rule 33’s “newly discovered evidence” provision to permit no relief on the basis of evidence purportedly demonstrating that the trial judge should have recused herself; it rests that interpretation on the general requirement, applicable where the new evidence concerns the merits of the charges, that the evidence show a likelihood of acquittal at a new trial. For many years, the Seventh Circuit adhered to a uniquely narrow view of the claims cognizable in a “newly discovered evidence” motion. It recently reversed its position on that issue, but seemed to suggest that to obtain relief a defendant generally must show a probability of acquittal at a retrial. This article maintains that Rule 33 should be construed to permit a defendant to move for a new trial, on the basis of evidence purportedly demonstrating a violation of his or her constitutional rights, if the evidence is newly obtained and could not have been obtained earlier through due diligence, and to obtain relief without having to show a likelihood of acquittal at a new trial. The article argues that a broad approach to cognizability is supported by the text and original understanding of the Rule, the fundamental nature of nearly all constitutional rights that might be the basis for a new trial motion resting on newly obtained evidence, and by the limitations on pretrial discovery in criminal cases. The article further argues that the finality and other considerations relied on in decisions refusing to entertain ineffective-assistance claims do not justify forcing a defendant to litigate such claims in a motion under 28 U.S.C. § 2255. A motion under that statute is not heard until after sentencing and appeal; it may have to be litigated by an indigent defendant without counsel; and its denial is not appealable as of right. As to the standard a defendant should have to meet to obtain a new trial, the article notes that requiring a showing of a likelihood of acquittal at a retrial conflicts with the Supreme Court’s decisions involving prosecutorial suppression of exculpatory evidence, which do not demand such a showing. Requiring a showing of a likelihood of acquittal is also unsound in principle, as newly unearthed evidence may show a trial was unfair, without indicating what the result might be without the unfairness.

On the Material Semiotics of the Bates Stamp

Ethnographic studies of legal materiality and the bureaucratic mundanities of law often juxtapose their richly empirical approach to the material assemblages of law with the ‘grand talk’ and conceptual abstractions of law. This article considers the intersection of formal legal discourse and the mundanity of bureaucratic practice through an examination of two judicial opinions concerning the legal significance of the Bates number, a sequential digit inscribed onto documents produced in US pretrial discovery. Through this analysis, the article both illustrates the Bates stamp’s role in the material constitution of law, and offers a reminder that the stories law tells about its own materiality can offer insights into, and enact and extend, the sociolegal agency of bureaucratic tools.

Toward a Theory of Motion Practice and Settlement

A model studies the relationship between pretrial dispositive motions, settlement, and discovery. The trial court, defendant, and plaintiff start uncertain about what the jury might think of the defendant's carelessness. The plaintiff is optimistic about her prospects at trial. The degree of optimism is private information. Discovery yields partial information that allows the parties to update their assessment of what the jury might decide if granted the opportunity (i.e., if the case does not settle). We find that settlement offers increase following the denial of the defendant's motion for summary judgment. We also study the impact of increasing the threshold of plausibility the plaintiff's complaint needs to survive the defendant's motion to dismiss.

Failed Experiment: Twombly, Iqbal, and Why Broad Pretrial Discovery Should Be Further Eliminated

The provisions for broad discovery in the 1938 Federal Rules of Civil Procedure were a revolutionary experiment. The experiment began to fail from the beginning and has continued to fail. It has dramatically increased litigation’s cost and pain, with few balancing benefits. Moreover, it has caused the profession to switch to hourly billing, causing an additional array of harms. Broad discovery should be eliminated, returning the United States to the sensible approach of the rest of the world. In Twombly and Iqbal, the Supreme Court went part of the way towards doing exactly that. Although the decisions nominally addressed issues of pleading, their focus was on the flaws in the discovery process, and the decisions eliminate discovery in many cases. The decisions moved in the right direction, but did not go far enough. Instead, broad discovery should be eliminated for all cases.

Lost in Translation? Nonstate Actors and the Transnational Movement of Procedural Law

AbstractIn recent years U.S. legal norms and practices reconfigured important elements of how law is thought of and practiced in both common and civil law countries around the world. With specific focus on the spread of American procedural practices (class action and pretrial discovery), this article applies a transactional view of law that emphasizes the private practice of law and nonstate actors. Such an approach highlights important aspects of world politics overlooked by traditional analyses of international legalization, conventionally understood as the direct spread of law by and among states. We find that the movement of law is a dynamic process involving diffusion, translation, and the repeated transnational exchanges of legal actors. Through our examination of this process, we offer insights into how aspects of American law moved into unlikely jurisdictions to reshape legal theory, pedagogy, procedure, and the organizing structure of the legal profession.

Restraining Multiple Bites at the Class Certification Apple: May a Federal Court Enjoin a State Court from Relitigating a Class Certification Denial?

This article previews the issues and arguments in the 2010-11 Supreme Court Term case, Smith v. Bayer Corp. In 2001, Keith Smith and Shirley Sperlazza filed a class action lawsuit against Bayer Corporation in West Virginia state court, alleging varying claims arising out of their use of the prescription drug Baycol. In 2008, the Federal District Court for Minnesota, overseeing the massive Baycol products multidistrict litigation, denied class certification under the federal class action Rule 23, to a proposed class of West Virginia consumers alleging economic-loss injury. Shortly after denial of the federal action, the Smith class moved for class certification in state court pursuant to the West Virginia class action rule.In response, the Bayer Corporation sought a permanent injunction enjoining the West Virginia class certification hearing, which the Minnesota federal district court granted. In January 2010, the United States Court of Appeals for the Eighth Circuit upheld this federal injunction of the West Virginia class certification hearing. This appeal involves the issue whether a federal court, consistent with the All Writs Act and the Anti-Injunction Act, could enjoin the West Virginia state court from determining whether to certify a class action after a federal court previously denied class certification in a virtually identical class action.The Court will address two major issues: (1) When a federal court in an MDL proceeding denies class certification of a statewide class action, may the court pursuant to the All Writs Act and the Anti-Injunction Act enjoin putative class members who were represented in the federal hearing from seeking class certification in state court for the same class action?, and (2) When a federal court in an MDL proceeding denies class certification of a statewide class action, is it impermissible for the federal court to issue an injunction restraining absent class member from seeking state class certification, where those absent class members were not afforded the due process protections required if certification had been granted?In deciding the Smith appeal, the Supreme Court will not forge any new ground in interpreting the Anti-Injunction Act or the All Writs Act. The appeal basically presents a fairly straightforward question concerning the appropriate exercise of the relitigation exception, in the context of dual federal-state class action practice. However, the Court’s Smith decision will have important implications for federal and state class action litigation.In the past twenty years, burgeoning of class action litigation in both federal and state court has given rise to problems relating to intersystem adjudication of complex litigation. There are no legal restrictions on litigants from filing parallel actions in both federal and state court, and the Anti-Injunction Act is a relatively weak mechanism for restraining parallel state proceedings.In the past two decades, federal courts have attempted to better manage duplicative class action litigation through increased use of the MDL procedures, which enable consolidation of all similar cases throughout the federal system, for coordinated pre-trial discovery and other proceedings. MDL procedure has proved to be a very effective mechanism for resolving massive litigation. In addition, Congress manifested an interest in channeling class action litigation into federal courts by enactment of CAFA, which created new federal jurisdiction for class actions and provided a vehicle for removal of class actions from state court into the federal system.Notwithstanding these developments, litigants still may pursue class action relief under state class action rules. The Smith appeal confronts the Court with the important question whether state litigants are free to seek a different class certification decision in a state court, once a federal court has determined class certification is not appropriate, and should be denied. As Bayer suggests, such a ruling would provide litigants with an incentive to keep filing state class actions until they find a judge who decides differently than the federal court. For policy reasons alone, Bayer contends this is an untenable conclusion.The Smith plaintiffs, on the other hand, suggest this case tests the very heart of federalism: the notion that state courts are free to determine issues according to their own interpretation of their laws and procedures, even where those laws and procedures are identical to federal rules.In the end, the Court’s opinion is likely to turn on a careful, nuanced analysis of the requirements of preclusion doctrine, with careful attention to the parties, issues, and nature of the class proceedings. We also may expect the Court to supply some further elucidation of what due process requires, in the class action context, to give preclusive effect to a class certification denial to nonparties to a prior litigation.

The Origins of the Oral Deposition Under the Federal Rules: Who's in Charge?

This paper traces the origins of the oral deposition in the Federal Rules of Civil Procedure (“Federal Rules”) with an emphasis on the role of the officer in charge of the deposition. In Parts II and III, I document the origins of the deposition, drawing on published sources. In Parts IV and V, I draw upon unpublished sources regarding the 1930s Advisory Committee’s decision not to provide for a judicial officer who would have the authority to rule on the admissibility of evidence during the deposition. That decision was an important, yet overlooked, element in the shaping of modern American civil procedure, including the displacement of civil trial by pretrial discovery. A striking attribute of the modern American deposition is that opposing counsel conduct the questioning in the absence of a judicial officer. The Advisory Committee that drafted the 1938 Federal Rules considered a proposal to provide deponents (both party witnesses and non-party witnesses) with the option of requesting a master to rule on the admissibility of evidence at the pretrial examination. According to archival sources, members of the Advisory Committee concluded that the systemic disadvantages of that proposal outweighed the advantages. I describe the historical origins of three salient features of the deposition: the near-absence of the rules of evidence; the presence of an “officer in charge” who has no power the rule on the admissibility of evidence; and the breadth of the permitted scope of inquiry. I discuss why the term “officer” is misleading: the examination is conducted entirely by adverse parties in the absence of a judge or a judge-like figure. The officer in charge is simply a stenographer or notary public who swears in the deponent and records the testimony; he or she exercises no adjudicatory function.

A Rarity: Court Overturns Suspensions of Bountygate Players

A panel of arbiters voided NFL Commissioner Roger Goodell’s punishments of the New Orleans Saints players involved in the bountygate scandal. Despite the nullification of the suspensions, Goodell may still punish players if he can prove that they intended to injure other players. The Panel’s decision may lead the League to settle for a monetary sum and avoid damaging pre-trial discovery in the pending lawsuits.

Nancy, Greta and Casey, Oh My! Public Access to Criminal Discovery Records: A Look Behind the Curtain in the Age of the Twenty-Four Hour News Cycle

The public availability of criminal discovery records implicates three important pillars of American jurisprudence: public access to the judiciary, a defendant’s right to a fair trial and the protection of individual privacy. Florida’s public records law opens discovery records to public inspection once exchanged between the opposing parties. The vast media coverage of the Casey Anthony saga highlights the potential harm to privacy and fair trial rights when the public has access to these records. Since 1980, the United States Supreme Court has recognized a First Amendment right of access to some pretrial proceedings and to trials. The Court also has acknowledged a common law right of access to court records in general. It has not yet, however, extended a right of access specifically to criminal discovery, leaving the lower courts and the several states to determine whether the public should be afforded access to the items generated during the criminal discovery process. In light of this gap, this research provides a survey of how the several states have filled in the hole, analyzing state court decisions, rules of procedure and public records laws to determine if any other jurisdiction has joined Florida in providing public access to the plethora of information generated in the pretrial discovery process.Only two states, Florida and Rhode Island, directly provide for access to criminal discovery materials. Twenty-five states deny public access to criminal discovery records, eleven through their public records law exemptions and twelve through the custody of discovery materials restriction. Two other states use case law to deny public access to criminal discovery records. Finally, four states appear to neither explicitly deny nor grant access to criminal discovery records.

Understanding Akzo Nobel: A Comparison of the Status of In-House Counsel, the Scope of the Attorney-Client Privilege, and Discovery in the U.S. and Europe

On September 14, 2010, in Akzo Nobel Chemicals Ltd. v. EU, the European Court of Justice (ECJ) unanimously decided that communications between in-house counsel and company executives are not subject to the attorney client-privilege, which is called the professional privilege in Europe. Many companies and professionals had hoped that the ECJ would hold that in-house counsel was entitled to assert the professional privilege. In this article, we argue that the decision should not have been either surprising or of great concern to companies based in or doing business in Europe.The decision in Akzo Nobel should not have been surprising because the ECJ was applying well-established principles. In 1982, the ECJ had ruled in AM&S Europe v. Commission that to be privileged a communication between attorney and client must relate to the client’s right of defense and must be with an independent/external lawyer.In addition, the decision should not be of great concern to companies in Europe for three reasons. (1) In very few European countries are in-house counsel members of the bar and are granted the professional privilege. Even if the ECJ had recognized the privilege, its decision would only have applied to cases involving the Europe Union, not to cases involving individual countries in Europe. (2) The professional privilege that the ECJ excludes for in-house counsel differs in significant ways from the U.S. attorney-client privilege. Had the ECJ recognized the privilege, the features of this privilege would have been different from those of the attorney-client privilege. (3) In the U.S., the attorney-client privilege is especially important because of the existence of discovery, while in Europe there is no discovery. Because discovery is essentially nonexistent in Europe, the risk of disclosure of communications between in-house counsel and their employers in private litigation is very small. Broad requests for pretrial discovery in Europe emanating from cases pending in the U.S. are limited under reservations adopted by most European countries under Article 23 of the Hague Convention. In public litigation in Europe, the authorities may seek to obtain documents from companies, but these materials will be protected by the professional privilege when they involve confidential communications between outside counsel and the company (subject to similar exceptions that apply in the U.S.), if the company has retained outside counsel, which is typically the case both because of the significance of the matter and the fact that in-house counsel cannot represent the client at trial.

Multidistrict Litigation: A Surprising Bonus for Pro Se Plaintiffs and a Possible Boon for Consumers

Conventional wisdom says that pro se plaintiffs almost invariably fare worse than represented plaintiffs. However, there exists in federal court a procedural regime under which pro se plaintiffs effectively receive attorneys and therefore experience success rates similar to their represented peers: multidistrict litigation. Multidistrict litigation is a procedure for consolidating multiple federal civil cases sharing common questions of fact into a single proceeding in one federal district court for coordinated pre-trial proceedings and discovery. This paper takes an empirical look at all federal civil cases terminating between 2006 and 2008 to determine what effect multidistrict litigation has on case outcome and finds that for all kinds of plaintiffs, consolidation into an MDL proceeding dramatically increased the chance that their case would settle. While pro se plaintiffs rarely reach settlement when they proceed on their own, in multidistrict litigation, there is no statistically significant difference in the settlement rates of pro se and represented plaintiffs. After exploring possible explanations for why multidistrict litigation equalizes the results of pro se and represented plaintiffs, this paper turns to those plaintiffs who do have attorneys but are unlikely to have attorneys of the same quality as their adversaries, consumers, and argues that they too are likely to benefit from the multidistrict litigation process for many of the same reasons as pro se plaintiffs. Finally, this paper suggests ways to improve the multidistrict litigation process in light of these findings.

Hawaii's Court-Annexed Arbitration Program: Final Evaluation Report

This is the fourth and final article of a series of four articles describing the evaluation results for Hawaii’s mandatory Court-Annexed Arbitration Program (CAAP), a program with a jurisdictional limit $150,000, much higher than most other state programs. This evaluation examines the effectiveness of Hawaii's Court Annexed Arbitration Program (CAAP), which is a mandatory, non-binding procedure for tort cases valued at $150,000 or less. The major goals of the program are to reduce litigant costs, reduce time to disposition, and improve or maintain the level of satisfaction for litigants and attorneys. Hawaii's Court-Annexed Arbitration Program has reduced pretrial discovery; reduced litigation costs for private litigants, increased the pace of litigation, provided litigants with a fair, just, and satisfactory 'day-in-court,' encouraged early and less expensive settlements, increased the percentage of cases that terminate each year, and may have reduced the number of trials. Through comparison of cases randomly assigned to CAAP to those cases that went through traditional litigation, the study found that under the arbitration program, the average plaintiff saves $496 in discovery expenses, and the average defendant saves $266. Lawyers' fees are on average $159 less per defendant whose case is sent to arbitration. CAAP cases also experience quicker disposition times, reaching disposition almost four months earlier than non-CAAP cases. Most lawyers who participated in the program were satisfied with the program and with the arbitrators.

The Use of Evidence Obtained in US-American Discovery in International Civil Procedure Law and Arbitration in Switzerland

The gathering of evidence is a key element in legal proceedings. Contrary to the regulations in Switzerland, the US legal order allows for pre-trial discovery, i.e. the parties are entrusted with the collecting of evidence at an early stage. This diverging approach becomes relevant in civil proceedings or arbitral proceedings in Switzerland with a linkage to the USA. The question arises if and how parties may profit from the US-American discovery procedure. This paper wants to answer the question by examining the use of evidence gathered in US-American discovery in international proceedings before Swiss courts as well as arbitral tribunals located in Switzerland. Part one concentrates on the possibilities and limitations of legal assistance pursuant to 28 U.S.C. § 1782. In part two the utilization of evidence collected in discovery procedure in Switzerland, in the event of a party seeking legal assistance individually, is evaluated. Thereby, special consideration is given to the Hague Evidence Convention and the Swiss ordre public. The paper concludes with a short summary of the author’s findings and rationalizations why evidence collected in discovery proceedings should be admitted.

Comparative Civil Procedure and Transnational 'Harmonization': A Law-and-Economics Perspective

This paper presents a critical analysis of recent proposals for transnational harmonization of civil procedure law through the promotion of uniform principles of transnational civil procedure that would homogenize civil procedure law across national boundaries. A recent proposal of Principles of Transnational Civil Procedure for commercial disputes, by the American Law Institute jointly with UNIDROIT, is focused particularly on eliminating the distinctive features of American civil procedure, notably party control of procedure, expansive pretrial discovery, and jury trial. That proposal is criticized by this paper on the grounds that its normative objective of transnational uniformity in procedure is unexamined by its proposers and highly questionable as a matter of policy. After reviewing the principal differences across national systems as a matter of comparative procedure, the paper presents a general economic analysis of civil procedure, and detailed applications to the distinctive features of the American system. The paper then examines the question of diversity versus uniformity in civil procedural law. Given that disputes subjected to litigation are unlikely to be homogeneous, the case for a uniform procedural law appears weak. Rather, and particularly in the context of transnational commercial disputes, it seems likely that procedural rules should vary with the dispute, and that the disputing parties themselves should be permitted to choose among those applicable. By definition, the disputing parties are sophisticated businesses who will internalize the results of the litigation. From this point of view, diversity among national systems of procedure would contribute positively to the efficient resolution of disputes, by enabling contracting parties to choose among disparate procedural rules. In the context of transnational commercial disputes, contracting parties in fact have been choosing their own applicable substantive law, forum, and procedural rules (to some extent) for decades, and these choices have been respected in most countries. There is no ground for replacing this system with harmonized procedural law. The adoption of such a proposal would actually reduce the efficiency of the transnational procedural system.