Mandatory Court-Annexed Alternative Dispute Resolution in the United States Federal Courts: Panacea or Pandemic?

(Excerpt) This paper addresses the current state of mandatory court-annexed ADR in the United States federal courts. Part I provides a summary overview of how ADR has developed in the federal courts. Part II briefly describes the positions of the proponents of increased ADR in the courts and of those critical of ADR court initiatives. Part III outlines issues that remain to be addressed and suggests possible avenues for empirical research. The conclusion proposes that we maintain continuing oversight and scrutiny of the process and ADR processes designed to operate after the parties enter the courthouse. As others have warned, we may be inadequately factoring in the impact that our ad hoc development and incorporation of ADR practices into the courthouse may have on both the litigation process and ADR

The After-Shocks of Twombly: Will We Notice Pleading Changes?

(Excerpt) Part I will briefly discuss the pre-Twombly view of notice pleadings. To some extent, our understanding of what the rules required and what lawyers actually did was a romanticized view of pleading. Actual pleadings were rarely as barebones as we imagine. Further, in recent decades, rules, statutes, court decisions, and practical considerations have further eroded the notice pleading construct. Part II will give a brief synopsis of the Twombly decision and then discuss the majority and dissent\u27s views on pleadings generally. Part III will examine selected cases post-Twombly and make some general observations and predictions as to what our new pleading narrative will say. A definitive answer is premature, but we can at least identify some plausible story lines and areas that will need further clarification from the Supreme Court or the rulemakers. The conclusion discusses the difficult questions that have been left to the lower federal courts to resolve as they apply Twombly to new scenarios and consider its implications for federal practice in a wide range of cases

The Litigator\u27s Dilemma: Waiver of Core Work Product Used in Trial Preparation

(Excerpt) This Article focuses on the protection from disclosure accorded to opinion or core work product when it is used, as intended, in pretrial preparation of cases. It is this use of opinion or core work product that brings the litigator to a dilemma. There are no explicit or bright line guides to advise the litigator when the use of such work product to prepare witnesses or the case will result in compelled disclosure of the materials to one\u27s adversary. Thus, the litigator must either forego use of such materials to prepare his case, even if it adversely affects that preparation, or risk disclosure of his core work product. Examination of this dilemma only begins with a reading of FRCP 26(b)(3). In considering the question of whether, and if so, to what extent, opinion or core work product should be protected from disclosure, we hardly start with a blank slate. Instead we can choose from the array of approaches and rules argued by litigants and adopted by different courts

The After-Shocks of Twombly: Will We Notice Pleading Changes?

(Excerpt) Part I will briefly discuss the pre-Twombly view of notice pleadings. To some extent, our understanding of what the rules required and what lawyers actually did was a romanticized view of pleading. Actual pleadings were rarely as barebones as we imagine. Further, in recent decades, rules, statutes, court decisions, and practical considerations have further eroded the notice pleading construct. Part II will give a brief synopsis of the Twombly decision and then discuss the majority and dissent\u27s views on pleadings generally. Part III will examine selected cases post-Twombly and make some general observations and predictions as to what our new pleading narrative will say. A definitive answer is premature, but we can at least identify some plausible story lines and areas that will need further clarification from the Supreme Court or the rulemakers. The conclusion discusses the difficult questions that have been left to the lower federal courts to resolve as they apply Twombly to new scenarios and consider its implications for federal practice in a wide range of cases

The Litigator\u27s Dilemma: Waiver of Core Work Product Used in Trial Preparation

(Excerpt) This Article focuses on the protection from disclosure accorded to opinion or core work product when it is used, as intended, in pretrial preparation of cases. It is this use of opinion or core work product that brings the litigator to a dilemma. There are no explicit or bright line guides to advise the litigator when the use of such work product to prepare witnesses or the case will result in compelled disclosure of the materials to one\u27s adversary. Thus, the litigator must either forego use of such materials to prepare his case, even if it adversely affects that preparation, or risk disclosure of his core work product. Examination of this dilemma only begins with a reading of FRCP 26(b)(3). In considering the question of whether, and if so, to what extent, opinion or core work product should be protected from disclosure, we hardly start with a blank slate. Instead we can choose from the array of approaches and rules argued by litigants and adopted by different courts

Mandatory Court-Annexed Alternative Dispute Resolution in the United States Federal Courts: Panacea or Pandemic?

(Excerpt) This paper addresses the current state of mandatory court-annexed ADR in the United States federal courts. Part I provides a summary overview of how ADR has developed in the federal courts. Part II briefly describes the positions of the proponents of increased ADR in the courts and of those critical of ADR court initiatives. Part III outlines issues that remain to be addressed and suggests possible avenues for empirical research. The conclusion proposes that we maintain continuing oversight and scrutiny of the process and ADR processes designed to operate after the parties enter the courthouse. As others have warned, we may be inadequately factoring in the impact that our ad hoc development and incorporation of ADR practices into the courthouse may have on both the litigation process and ADR