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Cardozo Journal of Conflict Resolution

Abstract

The common law tradition has relied on the exchange of allegations to start lawsuits for centuries. This Article reviews a growing trend within that tradition that emphasizes the exchange of evidence— discovery—to initiate cases instead. When compared to the allegation exchange required under the modern American plausibility standard, an evidence-based exchange model has significant cost advantages for both the parties and the judicial system. While modern pleading practice attempts to control discovery costs by requiring a higher showing, a realistic assessment of party behavior in the modern pleading regime reveals that plausibility is actually quite expensive, and that limited discovery is a more cost-effective tool for determining which cases are worth the expense of more fulsome discovery. The Article draws on the historical framework of common law pleading to derive an evidence-based case initiation model driven by the parties’ competitive interests to encourage behavior productive to systemic goals of dispute resolution. The Article suggests that this model, which resembles the contract structure of “offer” and “acceptance,” has the potential to reduce the costs of modern litigation and expand access to justice. To conclude, the Article suggests that the movement towards evidence-based case initiation may be part of a theoretical shift in the common law tradition towards the private resolution of disputes and would have significant impacts on the legal system as a whole.

Keywords

Pleading, Discovery, Access to Justice, Alternative Dispute Resolution, Civil Procedure, Evidence Exchange, Litigation Costs, Settlement, Common Law, Procedural Reform

Disciplines

Dispute Resolution and Arbitration | Law

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