Hot Topics for Trial Lawyers
A compilation of journalistic articles to keep you abreast of changing developments and current events in the litigation realm. If you are interested in writing for this Hot Topics segment, email tnuckols@texasbar.com
Bell Atlantic Corp. v. Tombly
Posted 5/11/08 W. Royal Ferguson, Jr., U.S. District Court, Western District of TexasThe recent U. S. Supreme Court decision in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) should be a wake up call for all trial lawyers and all trial judges everywhere for several reasons. For one thing, it sets up another barrier to entry into federal court by changing the rules for motions to dismiss under 12(b)(6) because complaints now must state a “plausible” claim or face dismissal. Now, every civil action in federal court will not only face a summary judgment motion and a Daubert motion, but also a 12(b)(6) motion. It is not because such motions are mandatory, it is just because they will be filed, out of an abundance of caution. Or just to work the plaintiffs and the courts to death.
But that is not the only problem with Twombly. In the case, six Supreme Court Justices apparently agree with Justice Souter that discovery in civil cases is impossible to control as a practical matter and that we should just give up and make it much harder to be in federal court, so that discovery doesn’t happen at all. This is an enormous challenge to the practicing trial bar and to trial courts, because it is a clear signal that if we do not get discovery under control, access to federal courts is going to be more and more restricted. Now is the time for those of us at the trial level who think that the civil justice system matters to come together and show our appellate courts that discovery can work effectively and efficiently. That means that trial lawyers must re-dedicate themselves to working with each other to be cooperative and reasonable about discovery. That also means that trial judges must quit treating discovery disputes as a pain in the backside and must start dealing with them in a creative and helpful way.
In my view, the biggest problem with the civil justice system today is discovery. It is where so much of the fighting takes place and it is where so much of the cost is absorbed. Either we get this under control or else the judges upstairs are going to keep chopping away at court access. If we fail in this task, we will have failed this nation and the cause of justice and liberty for all time to come. It will be said, quite accurately, that, during our watch, we let justice die. If this is not a call to action, I do not know what is. Yet. I think that we can do this. I think that we can rise to the challenge and make discovery work and preserve this system that has served America so well and that has done so much to keep the rule of law in place here. But the time to act is now. What do you think?