Courts

Judge Amul Thapar On Discovery And The Civil Justice System

Judge Thapar believes that we need to replace the current system with one that delivers justice to people more quickly.

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Judge Amul Thapar (by NAPABA via YouTube)

At last month’s Federalist Society National Lawyer’s Convention, I attended a fascinating panel, Evolution of the District Courts, featuring four sitting federal judges — Judge Thomas Hardiman (3d Cir.), Judge Amul Thapar (6th Cir), Judge Carlos T. Bea (9th Cir.), and Chief Judge William E. Smith (D.R.I.) — and one former judge, Michael B. Mukasey (formerly of the S.D.N.Y., currently of counsel at Debevoise & Plimpton). I meant to write something about the panel shortly after the conference, but never got around to it (aside from a handful of tweets).

But now I have a chance to revisit the discussion. Terri Gerstein just wrote it up for Slate, in a story entitled Two Top Conservative Judges Offer Plan to End Discovery for Most Litigants.

The “two top conservative judges” are Judge Hardiman and Judge Thapar, both Supreme Court shortlisters for President Trump and finalists for the seat that went to Justice Brett Kavanaugh. From Gerstein’s write-up:

Thomas Hardiman, a judge on the 3rd U.S. Circuit Court of Appeals, made what should have been viewed as a shocking declaration for a federal judge. Hardiman told the crowd at the 2018 Federalist Society Convention: “If I were able to do something unilaterally, I would probably institute a new federal rule that said that all cases worth less than $500,000 will be tried without any discovery.” The audience applauded. A fellow panelist, Judge Amul Thapar of the 6th Circuit, chimed in, “Can I say amen?” Thapar later repeated his endorsement of the idea.

Gerstein goes on to assail the two judges for essentially wanting to slam the courthouse doors shut on less-privileged litigants. Having attended the panel myself, I felt this critique didn’t accurately reflect the totality of the thoughtful and wide-ranging discussion (which, in fairness to Gerstein, she does describe elsewhere in her piece; you can watch a video of the full panel and decide for yourself).

So I reached out to both judges for to see if they wanted to expand upon their previously expressed views on discovery and the civil justice system, in light of the issues raised in the Slate piece. Judge Thapar shared some thoughts with me, which appear below.

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Judge Amul Thapar:

It’s easy to take isolated comments out of context. What our overall discussion reflected was the need to replace the current approach to discovery with an approach that might be imperfect, but is definitely more speedy.

I’ve spoken on several occasions about discovery and how it affects the civil justice system. The core problem is that citizens are disenchanted because they can’t get their day in court, and lawyers are disenchanted because they spend too much time on discovery — they’ve become discovery lawyers rather than trial lawyers.

This is not an issue of favoring plaintiffs or favoring defendants. Both sides can abuse the discovery process. A defendant can use discovery to run out the clock on the plaintiff and to make the plaintiff run out of money. I support an equal playing field for plaintiffs and defendants — and the way to get that equal playing field is not by having unlimited discovery.

Think of the great civil rights cases of the twentieth century. And then imagine Thurgood Marshall and his team tied up in years of discovery. That’s not what happened. Judges handled those cases quickly, not getting bogged down in discovery and delay, and they emerged as heroes.

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A main theme of my remarks at the panel was that we, as federal judges, promoted alternative dispute resolution for years, and then we lost out to ADR. We need to find a way to win this business back. We need to look at the world of ADR and how it has made the process more affordable, accessible, and swift, and bring over the best of these ideas to the federal courts.

One proposal the courts are exploring in pilot programs is having a civil Brady rule. In civil litigation, the parties would have an affirmative obligation to turn over discovery that’s harmful to them. Under the status quo, such crucial evidence often gets buried or lost under a huge amount of irrelevant evidence — the needle in the haystack.

As a district judge, I implemented a pilot program for civil cases to go from complaint to trial in one year. This put the obligation on me as the judge to set deadlines, to move the cases along, and to play an active role in case management. I told the parties that they should consider me available to them on a 24/7 basis.

Now, were there some cases where the plaintiffs, the defendants, or both sides said that getting from complaint to trial in a year wasn’t possible? Absolutely. This wasn’t possible in certain complex cases — and I should note that complexity is independent of dollar amount.

But in these cases, if the plaintiffs wanted an extension, they’d lose their trial date, and if the defendants wanted an extension, they’d lose the right to have their summary-judgment motions decided before the directed-verdict stage.

And I required parties seeking extensions to bring their clients to court for this. I wanted the lawyers to explain to their clients, and I wanted to explain to the clients myself, why there was going to be a delay. Sometimes there are justifiable reasons for delay, such as case complexity. But people will have more faith in the system if they understand why the case is being delayed and how it’s in the best interests of justice.

Evolution of the District Courts [Federalist Society]
Two Top Conservative Judges Offer Plan to End Discovery for Most Litigants [Slate]

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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