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Important process in civil trials has been evolving since the early 20th century

Pilot program aims to reform discovery

A pilot program started by the Mississippi State Supreme Court is being tested for the next two years in three of the state’s 19 county courts. The Supreme Court’s Advisory Committee on Rules is hoping that the program will pave the way for a proposed rule that would ensure that civil cases across the state are more expedient and cost-effective, especially when plaintiffs are seeking damages of less than $50,000.

“The goal is to make court more affordable for these small claims without sacrificing fairness,” says Jackson attorney and former Hinds County Court judge James Bell. Bell is currently secretary to the Rules Committee. The program went into effect last October in Lee, Rankin and Jones Counties. Bell says the program will also examine the effects of limiting summary judgment in many of the cases and try curbing the amount of motions filed by the parties involved.

“I sent out a letter and invited the counties to participate,” says Chief Justice William L. Waller Jr. “They represent each area of the state: north, central and south. The court in Rankin County gives us a metropolitan look, the Lee County court gives us a more micropolitan look while the Jones County court will be more rural.”

One of the issues targeted by the pilot program is discovery, the pre-trial practice of obtaining evidence for the case and determining how it will be viewed. This often includes copious document requests and costly depositions.

Mississippi College law professor Matt Steffey says that this process in civil trials has been evolving since the early 20th century, a time when the practice of discovery was not as common. “Discovery is very important… it’s the most critical phase of a civil case and helps you narrow a lot of the issues involved.” Steffey says. “Very few of these cases go to trial anymore and, consequently, discovery shapes the settlement decisions.”

Steffey says that one issue of concern in recent years was how expensive discovery was getting. “Let’s say you went to an auto body shop and they ruined the interior. Damages are in the thousands of dollars,” he says. “If you had to hire a lawyer and go through discovery, then the expense of pursuing the case from the research to mediation to arbitration would make it almost not worthwhile.”

Steffey says that the pilot program is not intended to combat discovery abuse, only to look for ways to improve the system. He says discovery can be used strategically like a “scorched earth” tactic to grind down the plaintiff. A March 11 report by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System examined the role of discovery in the U.S. civil justice system. They found that in many civil jurisdictions, the system takes too long and costs too much; existing discovery rules were labeled “impractical” and “a nightmare”.

Lee County Court Judge Charles R. Brett of Tupelo agrees that pre-court discovery was part of the reason civil litigation was drawn out and costly considering the hourly rate of attorneys involved. “There was a lot of red tape,” he says. Justice Brett says he liked the idea in theory and volunteered to put the program into practice in his courtroom. “They said we’ll see how it works in the country courts before we implement it statewide,” he says. “You will get your day in court sooner and hopefully at less expense.”

Rankin County Court Judge Kent McDaniel says that while its too early to see the effects in any of the courts, most of the cases in his county are being settled early and that may be a benefit in and of itself. “So far as I can recall none have come to trial yet,” he says. “It’s a great rule and is a much needed step in the right direction.”

Steffey says that the Supreme Court is currently working on a system to get feedback from parties and lawyers to see whether they like the idea and to get any suggestions. “I think it holds a lot of promise,” he says.

Contact MBJ staff writer/researcher Stephen McDill at stephen.mcdill@msbusiness.com .

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