January 13, 2016 · FLEMING | NOLEN | JEZ, L.L.P.
In his end of the year report Justice John G. Roberts, Jr. noted that the federal litigation system has grown “too expensive, time-consuming and contentious.” Chief Justice Roberts noted “I am hardly the first to first urge that we must engineer a change in our legal culture that places a premium on the public’s interest in speedy, fair, and efficient justice.”
Suggestion to Streamline 45% of the Federal civil case load
Of the approximately 260,000 active Federal civil cases over 120,000 cases are in Federal Multidistrict Litigation (MDL). That is, approximately 45% of the entire Federal civil case load has been consolidated into a few MDL transferee judges courts by the Judicial Panel on Multidistrict Litigation (JPML). In fact, over 60,000 of those cases have been consolidated into only one judge’s court.
Many of Those Cases can Stagnate For Years.
The purpose of the MDL courts is to prepare the cases for trial and then remand the cases back to the court from where they came (called the transferor courts). However, all too frequently, remands back to the transferor court occur, if at all, only years after all discovery has been completed. This is contrary to the statutory frame work contained in 28 USC § 1407 (a) and the Supreme Court’s decision in Lexicon, Inc. v. Milberg, Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998).
Making Federal Civil Litigation More Expeditious and Inexpensive.
Rule 1 of the Federal Rules of Civil Procedure provides that the Rules are “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Instead of holding thousands of cases for many years after discovery has been completed, MDL transferee judges could provide for more expeditious and inexpensive determination of Federal civil cases by following the statute and the dictates of the Supreme Court and remanding cases back to the transferor court so that the litigants could obtain trials by jury expeditiously. Chief Justice Roberts could encourage transferee judges to expeditiously remand cases.
For more information see the article by Fleming and Kasischke entitled MDL Practice: Avoiding The Black Hole @ Vol. 56 South Texas Law Review pg. 71)