By Prof. Steven S. Gensler, Academic Advisor to the Civil Jury Project, and Hon. Timothy D. DeGiusti, Judicial Advisor to the Civil Jury Project
|Not surprisingly, the most commonly cited factor was a concern that the discovery presumptively allowed under the Fast Track rules would not be sufficient. When we dug deeper, attorneys specified that they were mostly concerned with the presumptive cap on document requests. But a significant number told us their discovery concerns were more general—it was the risk that they might want or need some type of additional discovery, rather than any particular and presently-known insufficiency. These discovery concerns were cited by both sides, but most often by plaintiffs. Nearly 50% of the plaintiff-side lawyers said that the discovery limits were a factor in their unwillingness to use the Fast Track option in their cases.
Taking a larger view, what the chart really illustrates is that there are many factors that work against the use of Fast Track programs. Lack of awareness. Briefing limits. Expert limits. Trial time limits. Concerns about how the Fast Track program might alter settlement dynamics or benefit the other side. Fear of the unfamiliar. Even simply not wanting to accelerate the trial date. All of these factors were cited by some significant portion of the responding lawyers. So if you’re looking for the source of lawyers’ resistance to using expedited trial programs, it’s not just concerns about discovery. It’s everything.
The “all of the above” nature of the opposition to expedited trial programs becomes an even larger barrier when you consider that expedited trial programs usually (in federal court, always) require the consent of all of the parties. As a result, if any party identifies any reason to not agree, the Fast Track becomes a closed road. And given the number of reasons lawyers have cited for saying “no,” the odds just aren’t very good. That’s especially true if the circumstances that might lead a typical plaintiff to say “yes” are the ones that would cause a typical defendant to say “no,” and vice versa.
So where do we go from here? At least for the time being, Judge DeGiusti is going to keep offering his Fast Track option. At the local level, we have some small hope that the simple act of doing our survey may have increased awareness of the program, led some lawyers to think anew about the program, and maybe caused some lawyers to decide to give it a try. And even if usage remains minimal, there is value in simply having it available as a bulwark against complaints that the federal courts impose a “Cadillac” process on lawyers who just want to quickly resolve “Chevy” cases.
From a national perspective, we would be remiss if we did not point out one significant ray of hope from the data. When asked if they would ever consider using Judge DeGiusti’s Fast Track option in a future case, almost 64% of the lawyers replied “yes” (54% for plaintiffs vs. 76% for defendants). We don’t want to make too much out of that response. Many districts and judges implemented their expedited trial programs precisely because they heard lawyers say they longed for a faster and cheaper alternative to the ordinary federal civil process, and we know how that has gone. Clearly there is a disconnect between what lawyers say they want and what they opt to do when faced with an actual choice in a specific case. But something is flickering behind those statements of interest. Whatever it is, we’d like to keep trying to fan it into a flame.
It is clear that expedited trial programs are no silver bullet solution to the problems that bedevil civil litigation, nor will they single-handedly reverse the long-term trend of vanishing civil trials. But, like most of the reforms that have been proposed, they still can be a part of the solution, even if just a small part. The question is how to maximize that role. We will keep pondering that question as we dig deeper into the data. And if you have thoughts on how to get more lawyers on the Fast Track, we’d love to hear them.
 We have identified five federal districts with expedited trial programs of some sort: the Northern District of California; the District of Minnesota; the Western District of Pennsylvania; the District of Nevada; and the Western District of Washington.
 Similar programs have succeeded in some state courts, especially with respect to routine, small-value tort cases like simple auto accident cases. See, e.g. , National Center for State Courts, Short, Summary & Expedited: The Evolution of Civil Jury Trials (2012), available at http://www.ncsc.org/SJT/ .