Commercial Litigation and Arbitration

Federal Litigation — Where Did It Go Off the Tracks?

Twenty-five years ago, in 1982, state and federal litigation cost about the same. Plaintiffs chose federal court sometimes for expansive discovery or to get a good judge, even though state court was available and additur impermissible. Today, plaintiffs with non-federal causes of action flee federal court. What happened? Highlights:

1983: Rule 11

1986: Summary Judgment Trilogy

Sometime in the 1980s/early 90s: Federal judges adopt unique individual rules; extensive pretrial orders and procedures mandated

1991: Chambers v. NASCO

1993: Daubert; Rules 26(a)(2) and 37(c)(1); Rule 26(a)(1) with opt-outs

1995: Private Securities Litigation Reform Act

1998: Securities Litigation Uniform Standards Act

2000: Rule 26(a)(1), (3) imposed nationally; 37(c)(1) extended to discovery.

2003: Rule 23(f)

2006: Electronic Discovery Rules; Class Action Fairness Act

2007: Bell Atlantic v. Twombly

Result: Federal court has become procedurally defen$e-oriented.

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