State Allies Series: Q&A with the Institute for Advancement of the American Legal System

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February 22, 2016

Colorado has it all, from skiing in Aspen to hiking in the Garden of the Gods.  Here to make sure that state and federal civil justice systems also have it all is the University of Denver-based Institute for the Advancement of the American Legal System (IAALS).  The organization is a national, nonpartisan research center dedicated to facilitating continuous improvement and advancing excellence in the American legal system.  

This year the organization has a full plate of initiatives that it believes will help make the court system fair for all parties.  To find out more about these initiatives and other timely legal topics, we interviewed Rebecca Love Kourlis, Executive Director of IAALS and a former justice of the Colorado Supreme Court.

The Federal Rules of Civil Procedure govern civil lawsuits in U.S. federal courts.  At the end of 2015 these rules were changed.  How did these amendments change the scope and process of discovery – the production of documents and information as part of a lawsuit?

Our courts have historically had a smorgasbord approach to discovery:  all you can eat, and return as many times as you like.  The new Rules on discovery move to a menu approach: order what you need.  This change is accomplished through three thematic revisions.

First, the Rules expressly charge the judge and the parties with the obligation to work toward a just and efficient outcome, which embraces the concept of cooperation among counsel to avoid gamesmanship and unnecessary delay. 

Second, discovery requests must now be relevant and “proportional” to the needs of the case, with proportionality being measured against the importance of the issues and the amount in controversy, among other factors. 

The third mandate is that judges must manage the cases from start to finish, because, of course, rules mean nothing unless they are enforced. 

Underlying all of these changes is a cry for a shift in the culture of litigation, as Chief Justice Roberts noted in his year-end report on the State of the Judiciary.  The new Rules point the way, but only the judges and lawyers can make it happen.

 

Tell us about your “Rule One” Initiative.

The Rule One Initiative works toward a more just, speedy, and inexpensive civil justice system, as promised by Rule 1 of the Federal Rules of Civil Procedure.  Across the country, in both state and federal civil justice systems, IAALS has successfully supported changes in both rules and caseflow management that are taking hold. We have urged adoption of:

  • Cooperation – We need to get the legal profession back to its professional roots and return to collegiality and civility. We are all dedicated to the rule of law and a system that is fair. By working together, we can achieve balanced and sustainable change.
  • Proportionality – The discovery needs to be proportionate to the case and the judge needs to insure that the parties have what they need without allowing the process to spiral out of control.
  • Early intervention by a judge – It is critical that judges understand the issues in the case and work with the parties to develop an appropriate pre-trial plan, which requires engaging on the case issues, including the technical aspects of discovery early in the process.
  • Quick resolution of motions – Motions can languish, stalling the litigation. The result is increased expense for clients and wasted court resources.  By being engaged early, judges can quickly address discovery disputes, appropriately tee-up substantive motions and keep the process on track

As part of this initiative we have done docket studies, surveys, and focus groups; we have held conferences, meetings, and most recently, our 4th Civil Justice Reform Summit.

In short, IAALS has focused attention on much-needed culture change in America’s legal system through thoughtful, empirically informed solutions.

IAALS’ Quality Judges Initiative is dedicated to promoting models for choosing, evaluating, and retaining judges that preserve impartiality, ensure public accountability, and keep politics from undermining the critical role of our judiciary.  Why is merit selection important?

Millions of cases pass through state courts every year. It is imperative that the judges handling these cases be impartial and trustworthy.  IAALS believes that judicial selection must be truly merit based, politically diverse, and above board.  We advocate for the O’Connor Judicial Selection Plan, which includes four steps: 

  1. Diverse and open proceedings at the nomination stage of selection;
  2. Gubernatorial appointment from among the submitted names;
  3. Robust judicial performance evaluation; and
  4. Submission of the sitting judge's name to the electorate for approval or disapproval in a retention election.

This month, IAALS released a set of recommendations for the conduct of judicial nominating commission members.  These recommendations were developed to enhance the appearance and reality of an open and fair process.  And if put into practice, we believe they will do just that.

This year IAALS is celebrating its 10th Anniversary.  As you reflect on this milestone, what do you count among your top accomplishments?

We have harnessed an enormous amount of energy toward simplifying the legal system with the goal of making it less expensive and less divisive. When we first opened IAALS’ door, the climate in the legal system was rife with cynicism and polarity.  We’ve been able to build consensus around practical solutions and sew hope that indeed we can return the system to one of which we are all truly proud. 

Coalition-building around implementable solutions is our hallmark, and it characterizes all four of our initiatives —Educating Tomorrow’s Lawyers and Honoring Families Initiatives being the other two.   Being able to make a real difference for the benefit of our system of justice and those it serves is a goal that inspires us every day at IAALS.