PEDR is Important for Culture Change in Courts

As you may know, the Institute for the Advancement of the American Legal System (IAALS), is a “national, independent research center dedicated to facilitating continuous improvement and advancing excellence in the American legal system.”  It is an impressive, high-powered organization based in the University of Denver.

It has four major initiatives:  (1) Quality Judges (promoting models for choosing, evaluating, and retaining impartial and accountable judges), (2) Rule One (recommending court processes providing greater access, efficiency, and accountability), (3) Honoring Families (recommending fair processes for the resolution of family matters), and (4) Educating Tomorrow’s Lawyers (promoting innovative models of legal education for an evolving profession).

(ETL collects course “portfolios” promoting the principles of the Carnegie Report and it included materials from my Negotiation course. I encourage you to submit materials for your courses.)

I previously noted a report entitled, “Reforming Our Civil Justice System: A Report on Progress & Promise,” co-sponsored by IAALS and the American College of Trial Lawyers Task Force on Discovery and Civil Justice.

IAALS just released a new report entitled, Change the System, Change the Culture: Top 10 Cultural Shifts Needed to Create the Courts of Tomorrow.

The report argues that a culture shift is needed:

The challenge in addressing these issues lies not only in crafting solutions—it is also overcoming lawyers’ and judges’ strong and well-documented resistance to change. Efforts to reduce cost and delay face inertia and attachment to the status quo. In addition, anecdotal evidence clearly establishes that “a strong cultural bias limits the ability of individuals to look at an old problem in a new way.” (Footnotes omitted)

The report identifies 10 critical shifts including “Dig Deep, Earlier: Lawyers need to develop a deep understanding of their case early in the process.” It argues:

Lawyers must focus on the case at the very beginning, identifying the issues in the case and then developing a pretrial plan focused on those specific issues. When this approach is employed, lawyers can determine the extent to which it would be more efficient to phase discovery, dispense with depositions or motions practice, or otherwise proceed in a way that gets to resolution for their clients. Understanding the case as much as possible as early in the process as possible allows a lawyer to design the process in a way that best serves the client and the system.

This is precisely the approach reflected in the work on planned early dispute resolution (PEDR), described in my prior post.

As I mentioned in my conversation with Peter Benner (initiated with that post), Peter and I are conducting a study of major corporations that have adopted PEDR systems.  We are interviewing inside counsel, asking why their corporations adopted PEDR systems when most other corporations don’t do so.  In our initial interviews, we hear a similar theme as in the IAALS report about the importance of changing the corporate culture.

I will present our initial findings at the fabulous symposium organized by Mariana Hernandez Crespo and the University of St. Thomas Law Journal on November 13.

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