In the January 12, 2011 edition of the New Mexico Bar Bulletin, State Supreme Court Justice Edward L. Chavez reported the results of a recent survey conducted by the NM Defense Lawyers Ass’n (NMDLA) and the NM Trial Lawyers Ass’n (NMTLA), at the State Supreme Court’s request. See Bar Bulletin, Jan. 12, 2001, Vol. 50, No. 1.
The NMDLA and the NMTLA are comprised and represent the interests of members of the civil defense bar and the plaintiffs civil bar, respectively. 253 attorneys responded, and the results were interesting both for what they indicate, and the questions they leave lingering.
The survey included 15 questions, the first of which identified the respondents area of practice (plaintiff or defense), and the last of which called for an open ended response on ways in which the State’s civil justice system could be improved, to which 130 respondents replied.[1] The vast majority (8) of the remaining questions concerned discovery, including discovery abuse and its effects on litigation costs. Three (3) of the questions concerned trial dates and their effect on resolution. One (1) question concerned mandatory mediation.
Members of the plaintiffs’ civil bar responded at a far greater rate than members of the civil defense bar: 61.7% to 38.3%.[2] Regrettably, the responses in the January 12 report are not broken down by constituent group, so we cannot be sure how the two groups feel about the State’s civil justice system, compared to each other. In other words, we cannot ascertain solely by these numbers whether one group is more or less dissatisfied than the other.
However, the numbers were nonetheless interesting. Some of the results may be suggestive of relative response rates, in that they resulted in number splits that are relatively comparable to (or less than 5 points divergent from) the initial response rates split of approximately 62 to 38:
However, the numbers were nonetheless interesting. Some of the results may be suggestive of relative response rates, in that they resulted in number splits that are relatively comparable to (or less than 5 points divergent from) the initial response rates split of approximately 62 to 38:
59.5% disagree[3] that discovery makes civil litigation too costly;
62.7% disagree that discover delays the resolution of civil cases;
64.2% disagree that the courts are good at enforcing existing discovery rules; and
66% agree that the duty to confer before filling a discovery tool is an effective tool.
Of course, this may just be a tempting over-simplification, so I use caution and urge readers to use caution in drawing any firm conclusions in this regard. I also urge the Court to consider amplifying the results in this regard.
Some of the responses were surprising because they seem contradictory to other internal response rates. For instance, notwithstanding the foregoing, 71.5% still agreed that there are many abuses in civil litigation; and yet 69.7% also agreed that counsel are usually able to agree on the scope and timing of discovery. It is impossible to identify on this data the cause or source of such apparent inconsistencies. It may reflect a certain level of ambivalence vis-à-vis the respective benefits and burdens of discovery, which is discussed in a bit more detail below.
Some response rates just plain seem counter-intuitive, based on what we think we know about the biases or predilections of the plaintiff and defense bars. For instance, surprising to this author at least, both plaintiff and defense bars appear to disagree that fact pleading could be an effective tool to narrow the scope of discovery. 51.8% of all respondents disagreed with that proposition, while only 43.1% agreed, and these represent a noticeable shift from the original plaintiff/defense response ratio. Similarly, 57.1% of all respondents disagreed that notice pleading required extensive discovery just to narrow the issues and defenses; 59.5% disagreed that discovery makes civil litigation too costly; and 62.7% disagreed that discovery delays the resolution of civil cases.
I find these numbers surprising because I imagined civil defense attorneys would substantially favor fact pleading over notice pleading, and that as a consequence there would be little or no “cross over.” To the extent the plaintiff bar faces greater hurdles in meeting the increasingly stringent federal pleading standards under Twombley and Iqbal,[4] I would have expected civil defense attorneys in New Mexico to also favor tightened pleading standards to minimize what they might otherwise perceive as “frivolous” claims or “fishing expeditions.” In this regard, New Mexican civil attorneys appear to mutually agree that liberal pleading standards are appropriate, and the costs of liberal civil discovery are outweighed by its benefits, even though 71.5% agreed there are many abuses of discovery in civil litigation.
Finally, several questions reveal an interesting tension concerning the benefits and effectiveness of judicial intervention and/or mediation. As already noted, 64.2% disagree that the courts are generally good at enforcing existing discovery rules, at the present time. However, there was still broad faith that judicial intervention could result in speedier results, if appropriately applied:
Finally, several questions reveal an interesting tension concerning the benefits and effectiveness of judicial intervention and/or mediation. As already noted, 64.2% disagree that the courts are generally good at enforcing existing discovery rules, at the present time. However, there was still broad faith that judicial intervention could result in speedier results, if appropriately applied:
77.2% agreed that firm trial dates lead to more prompt resolution of cases;
68.6% agreed that trial dates should be set early in a case;
74.8% agreed that the date should be set before discovery is closed; and
76.4% agreed that early intervention by the judge can help to narrow the issues and limit discovery.
Interesting to me as a mediator as well as an arbitrator and ALJ, however, there was less broad faith that mediation could also help to speedily resolve cases. This is not to say there was not a favorable reaction to it: 62.7% agreed that a statewide mandatory mediation rule would help resolve more cases quicker. However, the numbers still suggest a general preference for judicial intervention over mediation. It could be that the notion of “mandatory mediation” was off-putting. As commenter David Levin, Second Judic. Dist. Director of Court Alternatives pointed out, any statewide rule would need to consider the special needs of different districts/localities, and also the different needs/issues presented by the different practice areas, such as regular civil and domestic litigation.
It could also be related to concerns that mediation depends on good faith participation, while in New Mexico courts will not generally second guess the good or bad faith participation, provided the parties do in fact arrive with a party with authority to settle the matter. See, e.g., Carlsbad Hotels Assoc., LLC v. Patterson-UTI Drilling Co., 2009-NMCA-005, 145 N.M. 385. Thus, counsel may simply put more faith in the court's ability to effectively "force" or "pressure" a settlement through its involvement. However, to the extent judge involvement in settlement may not be appropriate, and to the extent diminishing judicial resources will permit less and less judicial involvement or intervention in the future in any event, this will likely prove to be a highly unrealistic prejudice on the part of counsel.
Personally, and in keeping with my own biases, I remain convinced of the considerable benefits of mediation in obtaining speedier resolutions, and I urge the Court to work to educate practitioners in this regard. I also urge the Court to consider how mediation can be used to assist it and the parties at pre-hearing stages, such as narrowing issues and resolving discovery disputes. Mr. Levin’s comments are equally pertinent in this regards:
[m]ethods of Dispute Resolution may provide an important resource in light of increasing caseloads, shrinking budgets, growth of the self-represented litigant populations, and the need for economical and efficient legal services. We should all view the survey as an expression of a need which we should address.
If you are interested in arbitration, mediation, or contract ALJ services, please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.
[1] The Court invited others to submit responses as well, up until Feb. 1, 2011, at http://nmsupremecourt.nmcourts.gov/rules/index.php, “Survey.” By 10:30 a.m. on that date, when the author accessed it, the option to post a comment had already been removed, and only two people Hd done so. One suggested a break down by practice group, and one (David Levin, the 2d Judic. Dist. Director of Court Alternatives), called for greater use of mediation. The original 130 written responses, however, were not yet posted and it is unclear if they will be.
[2] Hopefully, this split does not itself mean the defense bar a prior perceives the State civil justice system to be antagonistic to or biased against it. In this regard, I urge the Court to eventually make available the 130 initial comments regarding how to improve the civil justice system, because they could shed considerable additional insight.
[3] I use “agree” and “disagree” herein to include also the “strongly” agrees and disagrees.
[4] See Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 127 S.Ct. 1955 (2007) (ruling, in an antitrust case, that to survive a Rule 12(b)(6) motion to dismiss, a plaintiff may no longer merely provide “fair notice” of a claim, but must instead allege “enough facts to state a claim for relief that is plausible on its face”); Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937 (2009) (affirming the applicability of Twombley’s ruling beyond antitrust cases); and the numerous commentary in law review journals and blogs on the impact of these cases.
