It’s that time of year where Top 10 lists and predictions for the coming year start coming out of the woodwork. I’m not big on either but there are two trends that I think deserve attention. The first is one I’ve mentioned several times this year and that is the change to the wording of FRCP 1 in the recent Rules amendments. Apparently Supreme Court Chief Justice John Roberts agrees with me.

Now this seems somewhat remarkable to me, and not just because it is the only time you are ever likely to see my name and the CJ’s mentioned in the same sentence. It reminds me of the story by former NBA great Al Attles, who played on the team with NBA legend Wilt Chamberlain the night Wilt scored 100 points. Attles, who scored 17 points in the same game, would quip for years afterward that, “yeah, Wilt and I combined for 117 points one night.”

Mr. Justice Roberts released his annual year-end report last Thursday, and in it he urged judges and lawyers on opposite sides to cooperate in the administration of justice under the new series of amendments to the FRCP that took effect in December.

Noting that the new changes “may not look like a big deal at first glance, but they are.”, Roberts stated that “While the federal courts are fundamentally sound, in many cases civil litigation has become too expensive, time-consuming and contentious, inhibiting effective access to the courts.”

He mentioned that lawyers often tried to wear down their opponents with “antagonistic tactics, wasteful procedural maneuvers, and teetering brinkmanship”, but went on to note this was still superior to the dispute resolution of choice in the 18th and 19th centuries, which was gun duels. Roberts suggested that while we shed less blood in our current system, judges and lawyers “must engineer a change in our legal culture that places a premium on the public’s interest in speedy, fair, and efficient justice.”

That last sentence of course mirrors the words of the revised FRCP 1, and Roberts urged federal judges to live up to those words by participating more often and in-person during pre-trial conferences as a way to speed up the process. “A well-timed scowl from a trial judge can go a long way in moving things along crisply,” he remarked.

Now I must mention that several commentators disagree with not only me but the Chief Justice about the importance of this change. One of them is Craig Ball, who banters with me about the lack of import of the change itself as well as its role in the CJ’s annual report.

You can see that discussion, which also includes our take on the California Bar opinion on technical competence (more on that discussion later this week), on the EDiscovery Channel at

Tell me what you think:




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