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Trimming the Fat

December 17, 2018
Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

There’s a pretty common solution when a business or some other enterprise runs into trouble: Trim the fat. There’s also a pretty common question when it comes to implementing that solution: What’s the fat? After all, one person’s fat is another person’s curvy.

I thought about this the other day when reading reports that a couple of federal judges — who happened to be on President Trump’s short (i.e., skinny) list for the Supreme Court —came up with an idea for streamlining federal trials: eliminating discovery for federal cases worth less than $500,000.

Yes, income inequality applies to litigation.

Being the knee-jerk leftist that I am, I immediately thought this was a terrible idea. It seemed like giving full justice only to the well-to-do.

Then I thought it was a great idea. Poorer people shouldn’t be bled dry by discovery costs.

And then I thought this was an impossible idea, because how do you know how much your case is worth without discovery? What if you claim it’s worth $1 million and it turns out to worth only $499,000? Does your discovery get thrown out?

How does this affect your initial pleadings? Do you lowball your damages request so the other side can’t conduct discovery? Do you highball so you do get discovery? Will this cause complaint demand inflation?

My head started to hurt and I noticed I was panting.

After calming down, it occurred to me that what was needed were alternative cost-saving ideas. I have a few.

For example, eliminating witnesses would save a lot of time and billable effort by attorneys. After all, asking witnesses questions in court is awfully similar to discovery. You might as well throw both of them out.

And nothing saves more on attorney fees than not allowing attorneys. It works in small claims court. There’s no reason it can’t work for $499,000 cases.

Judges seem like a frill, too. If there’s no evidence, why do you need a judge?

So there you have it: There should be no trials at all worth less than $500,000.

Then everyone will claim their case is worth more.

Masochism? Here’s something else that will make your head hurt if you think too much about it.

Last month, it was reported that the pass rate for bar exams was the lowest in 67 years.

Last week, the American Bar Association reported that law school enrollment is up.

Why am I having visions of lemmings?

Online drama. I love the internet. There are so many important, exciting and informative stories there. Last week I came across this on Twitter:

State Bar of Montana‏ @StateBarMT

The Judicial Nomination Commission will interview four candidates for Montana Water Court associate water judge in Bozeman on Friday, Dec. 14: Marjorie Black, Stephen R. Brown, Dana Elias Pepper, and Anna Margret Stradley.”

Who will it be? The suspense is almost too much.

You’re glad to know about this, aren’t you?

Categories / Op-Ed

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