News + Events
Discovery reform filled Dalton's year
Troutman partner discusses controversial, productive year as president of college of trial lawyers
Daily Report
October 14, 2009
By Janet L. Conley, Associate Editor
Performing his duties as president of the American College of Trial Lawyers in the past year, John J. “Jack” Dalton visited 40 states, oversaw the issuance of a new code of trial and pretrial conduct and presided over the release of a report on the civil discovery system that has been called both “audacious” and “dubious.”
“It's close to a full-time job,” said Dalton, a longtime Troutman Sanders litigation partner who finished his term as president of the 59-year-old invitation-only organization last week.
A big part of his presidency was overseeing a joint report with the Institute for the Advancement of the American Legal System at the University of Denver to identify problems in the civil discovery system and recommend possible solutions.
The report was commissioned in 2007, before Dalton's presidency, when lawyers realized that fewer cases were being tried, in part because of higher discovery costs, with a resulting impact on the administration of justice.
During the course of a year's study, the college surveyed more than 3,800 of its members, with a 42 percent response rate. Those respondents, Dalton said, “felt like the system was broken.” The college has a total of 5,700 members—judicial, emeritus and Canadian fellows were excluded from the survey; 132 of the active members are from Georgia.
So a 17-member discovery task force, including Georgian William U. Norwood III of Pope, McGlamry, Kilpatrick, Morrison & Norwood, drafted a report espousing sometimes radical ideas on how to fix the problems.
The report was released in March to significant debate. In an article for The Metropolitan Corporate Counsel, a publication for in-house attorneys, Thomas A. Gottschalk of the Institute for Legal Reform wrote that the report's 29 recommendations were “audacious” and “dubious.”
But he urged discussion on the ideas, saying they “constitute a breathtaking proposal to rethink almost the whole body of pretrial management rules and procedures, including pleadings and discovery.”
Among the most controversial proposals, said Dalton, is proportionality—the idea, he said, that “some cases, because of what is at stake, do not merit the same depth or scope of discovery as cases that involve more complex issues.”
In other words, he said, “Why should the system have to put up with a discovery process that costs $100,000 or $150,000 for both sides when what is at stake is $100,000? Those issues exist because discovery is unlimited except by a relevance standard.”
The report recommends early judicial involvement in a case, so that judges and counsel can discuss the scope of discovery and set parameters before the first sets of interrogatories or requests for production of documents go out.
Another controversial topic, said Norwood, the Georgia task force member, involved “whether we need summary judgment motions anymore.”
When the concept of summary judgment first came into courtrooms, he said, it was considered an extreme measure to be granted only when it was beyond doubt that no material issue of fact remained in dispute.
Now, said Norwood, a plaintiffs' lawyer, he hears judges acknowledge that he has a case but that a jury never would buy into it. “It's been a shorthand way for a court to say you can't sustain it,” he said. “Why are we so afraid of juries? Why don't we just let a jury step up and decide the case?”
This idea was so touchy that the task force merely urged further study of dispositive motions, while acknowledging that nearly 64 percent of plaintiffs' lawyers said summary judgment motions “were used as a tactical tool rather than in a good-faith effort to narrow issues.” By contrast, nearly 69 percent of defense lawyers said “judges decline to grant summary judgment motions even when they are warranted.”
“I've seen several critical comments,” Dalton said of the report as a whole. “We want that debate heard.”
The college also wants to test the principles in the report and is planning to launch pilot projects in courts around the country where, essentially, alternate versions of the rules of civil procedure based on the college's proposals would govern litigants. It won't be an easy task.
“There are some jurisdictional issues,” Dalton said. “Can you even do it without modifying legislation? Can you get the support of the bar and the governing bodies of the judiciary to go along with it? We think we can.”
Norwood said more than 10 jurisdictions already have expressed an interest in implementing the college's pilot project rules along with civil case flow management guidelines published by the Institute for the Advancement of the American Legal System.
The college, during Dalton's tenure, also finalized and published a new code of trial and pretrial conduct.
Some of the code's most significant changes, he said, deal with developments in the pretrial system, with a specific focus on electronic discovery issues and exhortations to improve civility and openness between opposing counsel.
“This is a code that is stronger in its aspirational goals than our past codes have been,” Dalton said. “What we do is we look beyond the minimum ethical requirements. … We want to elevate the conduct of trial lawyers so that the administration of justice is facilitated.”
That's not easy to enforce, he acknowledged, because the college has no regulatory authority. However, the code—which the college has revised and published for some 40 years—is, he said, almost “universally accepted” by the judiciary in U.S. federal and state courts and in Canadian provincial courts, which often adopt it as part of their local rules.
The first printing on the new code, he said, is likely to be in the “tens of thousands,” and will be distributed to trial and appellate judges, law schools and continuing legal education programs around North America.
One project still in development is an analysis of how technology affects cases and how to preserve fundamental fairness and reduce the risk of mistrial in an era when jurors—who've been told not to gather information about a case—use the Internet, their BlackBerrys or their iPhones to research the litigation before them.
Many of the college's proposals, should they come to fruition, may eventually affect Dalton's practice. He's a longtime litigator who's represented Beazer Homes, WorldCom and CNN, among other clients.
Now, his time as president behind him, Dalton said he wants to ramp up the practice he had to curtail in order to meet his leadership duties. “I'm ready to get back in the trenches and start slugging it out again on a full-time basis,” he said. “It is a credit to some of my adversaries that they did not take advantage of me not being around. There is still plenty of civility out there.”