Washington Lawyer - November/December 2024 - 12

FEATURE
discovery requests and even for depositions, where claimants can be
asked for every reason [why] they think they are entitled to relief in order
to scope out their claims, " Rushkoff says. A significant part of discovery
that normally takes place outside of the courtroom is undertaken with
the judge's involvement at OAH. " We're doing some of the parties' work
for them, " he adds.
That extra lift may be more manageable in administrative courts, which
focus on limited subject matter, but not in the broader civil court system,
according to Rushkoff. " One advantage that the government [representatives]
have in these situations is that these are repeat cases, " he says. " This
is their bread and butter. They've pretty much heard it all by now, so they
are able to respond in real time and more adeptly than you might if you
were more of a generalist handling a wider variety of cases. "
In addition, because the cases in his court always involve the government
as a party, the process of gathering information is simpler. " It's not
a situation where the government is doing a disservice to its client by
being forthcoming with the information it has, " Rushkoff says. Government
representatives are often willing to volunteer information at an initial
status conference that, elsewhere, an attorney might rightly withhold
unless compelled to produce through discovery.
This illustrates another complication in the broader implementation of
simplified procedures. In cases where parties are more hostile than in public
benefits matters, adverse parties may be less forthcoming with information,
and greater judicial involvement could be perceived as unfair.
Overall, Rushkoff has a positive attitude toward the streamlining of
processes. " I'm glad I've been at OAH at this time, when there's been a
big focus on access to justice, because I feel we're on the cutting edge
in terms of trying to improve access by simplifying court procedures, "
he says.
LITIGANT PUSHBACK
When seeking to simplify court procedures, pushback from litigants, including
those with counsel, should also be considered, says Proskauer
Rose LLP partner John Ingrassia.
Although Ingrassia's work is largely transactional and regulatory, he is familiar
with his corporate clients' perspectives on litigation. Who would
want a jury trial, for example, depends on the case. " It could be either
party, depending on who you are, how the jury is likely to perceive you,
the complexity of the matter, and other considerations, " Ingrassia says.
" All of that being said, I think most businesses would want the option
and not be foreclosed [of] the opportunity. " The Ontario model, which
allows parties to opt out of the simplified procedure, might provide the
flexibility that Ingrassia's clients are interested in.
Other aspects of procedural simplification, such as restrictions on the
amount of recovery, could present a sticking point. " Costs are extensive, "
Ingrassia says. " Limiting the ability to recover them could be problematic. "
Limitations on discovery and trial length may also chafe. For large corporations,
litigation is an ongoing reality, a sunk-cost expense. As such,
they may have a greater tolerance for extended proceedings.
On the other hand, such limitations might be particularly attractive to Ingrassia's
clients. " The discovery process and document discovery can become
very costly and time-consuming, " he says. " Most people would
agree that a very long and very expensive discovery process doesn't add
a lot to reaching a just outcome. It's one place where there may be alignment. "
Large
institutional actors have had their own campaign for procedural
simplification in recent years, targeting the administrative courts of regulatory
agencies, where Ingrassia says investigations and cases can continue
for years, costing his clients millions of dollars.
" We've seen attempts to simplify things like agency investigation practices
... and the agency process has continued to be complex, expensive, and
time-consuming, " Ingrassia says. " The agencies have implemented a number
of reforms over the years. I'm thinking of the Federal Trade Commission,
specifically. Ultimately, I would say that, having seen those attempts,
none have been terribly successful. They're good-intentioned, but we
haven't seen a meaningful difference in how burdensome it is to respond
to an agency investigation, how long it takes, or how much it costs. "
MULTIFACETED SOLUTION
At the D.C. Courts, the pandemic helped
usher in adjustments to improve access to
the courts and address emerging needs.
" We learned not only that we can adapt and
change rapidly, but also that we have to, "
says D.C. Court of Appeals Chief Judge Anna
Blackburne-Rigsby, who sees process simplification
as one aspect of her mission to
ensure that the courts are open to all, trusted
by all, and provide justice for all.
" I like the term 'continuous process improvement,' "
adds Blackburne-Rigsby, chair
of the Joint Committee on Judicial Administration,
the policymaking body for the D.C.
Courts. She is also immediate past president
of the Conference of Chief Justices (CCJ),
which in 2021 passed Resolution 3, " In
Support of Process Simplification, " encouraging
courts to simplify procedures to
12 WASHINGTON LAWYER
* NOVEMBER/DECEMBER 2024
Washington Lawyer - November/December 2024

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