Comments on a Reform of the Rules of Civil Procedure

Extract

The central proposals of the Advisory Committee on Civil Procedure cover five areas: the use of affidavits in the support of pleas; witness lists; document lists; alternative pleas; and a redefinition of causes of action. I have reservations about the Committee's proposals both on grounds of principle and on specific grounds.

(a) The committee's proposals assume that a substantial number of the judicial system's deficiencies are a result of faulty rules of civil procedure. These faults allow litigants to play games of “hide-and-seek” and to conceal the truth, and they hinder an examination of the issues actually in dispute. The committee's approach is a very naive one; in reality, efficient judges who make proper use of the existing rules have no difficulty in conducting a proper hearing of the disputes brought before them.