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In Judge Victor Marrero’s Article “The Cost of Rules, the Rule of Costs,” he argues that too many lawyers use too many procedural devices to cause too much inefficiency within our civil justice system. His Article helpfully asks us to focus on the role of the lawyer and law firm economics in assessing how to solve waste and abuse in civil litigation. He proposes an array of procedural changes to address these perceived problems. In this response, I argue that Judge Marrero’s assertions about costs are questionable, given relevant empirical evidence. Moreover, although I am confident that there are instances when lawyers use procedural devices unfairly, I fear his proposed interventions may have their own unintended consequences. More broadly, the narrative of costs he deploys has consequences as well – it has consistently been employed to justify innovations that reduce access to justice, an outcome that is lamentable given the dearth of empirical evidence to support the assertions of outsized litigation costs.
civil procedure, discovery, litigation, empirical legal studies
Civil Procedure | Law | Litigation
Alexander A. Reinert,
The Narrative of Costs, The Cost of Narrative,
Cardozo Law Review
Available at: https://larc.cardozo.yu.edu/faculty-articles/429