Survey Results: Why Won’t Lawyers Get on the Fast Track?

By Prof. Steven S. Gensler, Academic Advisor to the Civil Jury Project, and Hon. Timothy D. DeGiusti, Judicial Advisor to the Civil Jury Project

In the June 2019 newsletter, Judge David Campbell (D. Ariz.) wrote about his experiment offering an expedited trial alternative in his civil cases. It generated little interest—even though he required the lawyers to develop alternative budgets to make the potential cost savings concrete—and he ended the experiment after four years.

Judge Campbell’s experience is hardly unique. Expedited trial programs have been offered in at least five federal districts around the country,[1] and always with the same results. We spoke with judges from each of these districts, and each time heard the same story—the lawyers just were not opting in to these programs.

One of the authors of this article provides a final data point. Judge Timothy DeGiusti (W.D. Okla.) has offered an expedited trial program in his civil cases since 2011. To date, only a handful of cases has signed up for his “Fast Track” program, and none of those has resulted in an expedited trial.

Why have federal-court expedited trial programs consistently failed?[2] To try to find answers, we surveyed lawyers who had been counsel in civil cases eligible for Judge DeGiusti’s Fast Track program. Among other things, we asked them (1) whether they knew about his Fast Track option; (2) whether they had proposed to use it; and, most importantly (3) if they didn’t propose to use it—or had rejected another party’s proposal to use it—what were the factors that led them to do so.

We received 133 responses from lawyers in 119 different cases. The responding lawyers were split almost evenly between plaintiff lawyers and defense lawyers spanning all types of practice from solo to big firm, and from in-house to government practice. The cases were split almost evenly between diversity cases and federal question cases. Thus, our data set nicely represents both the types of civil cases in the Western District of Oklahoma’s docket and the lawyers who litigate them. Here’s what we found.

In over 98% of the cases, no party even proposed using the Fast Track program. In many of these cases, it may be that the Fast Track program had no chance because neither party’s lawyer knew about it. But nearly 60% of the responding lawyers said they knew about it, and only one lawyer needs to be aware and interested for the Fast Track option to be put on the table. So what explains the fact that no party proposed using it in 117 out of 119 cases? As the following chart shows, there were many factors at play.

Based on your prior responses, you either decided not to propose using the Fast Track Option in this case, or rejected it after another party proposed using it. Which of the following factors played a role in that decision? (Check all that apply)


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.

[1] 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.

[2] 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 .