Wednesday, August 22, 2012

Top 10 Best Practices in Predictive Coding

Equivio, an e-discovery vendor, has produced a white paper discussing the best practices in predictive coding.  Registration is required to view the paper. Here is a description:

Predictive coding is new to e-discovery.  Predictive coding, sometimes termed computer-assisted review or technology-assisted review, is software that can be trained by a human being to distinguish between relevant and non-relevant documents.  Over the past three years, the predictive coding market has transitioned from a preliminary embryonic state, a test bed for experimentation by technology geeks and early adopters, to the point today where the technology has been approved for use by courts around the US and internationally, and has become the single most talked about topic in e-discovery worldwide.

As is well known, the classification technologies that underlie predictive coding applications in the e-discovery arena are widely used in a very broad range of industrial and scientific settings, and have done so since beginning in the 1960’s.  Some of the best practices that have developed in these settings are analogous to the e-discovery setting.  However, e-discovery is a unique arena, especially in terms of the stringent defensibility requirements that apply.  As such, it has been necessary to develop and define best practices that will address the unique needs of predictive coding applications in the e-discovery environment.  The objective of this white paper is to outline the best practices that are emerging in the application of predictive coding technology to the e-discovery arena.


Wednesday, August 15, 2012

Prof. Hoffman Posts Article on Rulemaking in the Age of Twombly and Iqbal

Professor Lonny Hoffman (Houston) has just posted an Article entitled Rulemaking in the Age of Twombly and Iqbal.  Here is the abstract:

In this article I am essentially trying to answer one critical question: Faced with the controversy triggered by the Supreme Court’s decisions in Bell Atlantic Co. v. Twombly (2007) and Ashcroft v. Iqbal (2009), particularly over access to the courts, why have judicial rulemakers not proposed rule reforms to address the concerns raised? This question is particularly puzzling when one realizes that over the last seventy-five years the rules committees have consistently rejected proposals to stiffen pleading requirements along lines similar to what the Court decreed in Twombly and Iqbal. It is as if Congress had repeatedly voted against amending a statute that had been on the books for years only to have the Court through judicial interpretation effectively rewrite the law as though it had been amended. While we reasonably might predict that at least some in Congress would call for a legislative response if this happened, five years after Twombly no proposals for rule reform have been forthcoming and there is no momentum on the rules committees in favor of reform. Why? In this paper I argue that uncovering what has kept rulemakers from acting in the past permits us to interrogate whether those reasons can justify the same course in the future. Ultimately, I conclude that the justifications of the past are no longer sufficient and that the case for immediate rule reform is strong. Beyond its immediate relevance to the unresolved pleading problem, the added perspective gained by examination of the rulemakers’ deliberations can also deepen our understanding of the rulemaking process generally, providing new insights about how the process of making new rules and evaluating existing ones may be improved.

The piece can be downloaded by visiting

Tuesday, August 14, 2012



Vanderbilt Law School’s Branstetter Litigation & Dispute Resolution Program invites submissions for its annual New Voices in Civil Justice Scholarship Workshop, to be held May 6-7, 2013 at Vanderbilt Law School.

This year, four junior scholars will be selected via a blind review process to present at the New Voices Workshop.  The format maximizes collegial interaction and feedback: in lieu of author “presentations,” all participants read the selected papers prior to the session, and at each workshop, a senior faculty member provides a brief overview and commentary on the paper. Open and interactive discussion immediately follows. 

Submitted papers should address an aspect of civil justice, broadly defined.  Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decision-making, alternative dispute resolution, remedies, and conflict of laws.  In keeping with the intellectual breadth of the Branstetter Program faculty, the Workshop welcomes all scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches. 

Submissions must be received at no later thanJanuary 1, 2013.   Selected participants will have reasonable travel and accommodations covered.  Other requirements and more details about the workshop can be found at

Monday, August 13, 2012

Langbein on the Disappearance of the Civil Trial

New on SSRN: John Langbein, The Disappearance of Civil Trial in the United States -  Abstract:

Since the 1930s, the proportion of civil cases concluded at trial has declined from about 20% to below 2% in the federal courts and below 1% in state courts. This Article looks to the history of the civil trial to explain why the trial endured so long and then vanished so rapidly.

For the litigants, a civil procedure system serves two connected functions: investigating the facts and adjudicating the dispute. The better the system investigates and clarifies the facts, the more it promotes settlement and reduces the need to adjudicate. The Anglo-American common law for most of its history paid scant attention to the investigative function. This Article points to the role of the jury system in shaping the procedure and restricting the investigative function. Pleading was the only significant component of pretrial procedure, and the dominant function of pleading was to control the jury by narrowing to a single issue the question that the jury would be asked to decide. This primitive pretrial process left trial as the only occasion at which it was sometimes possible to investigate issues of fact. Over time, the jury-free equity courts developed techniques to enable litigants to obtain testimonial and documentary evidence in advance of adjudication. The fusion of law and equity in the Federal Rules of Civil Procedure of 1938 brought those techniques into the merged procedure, and expanded them notably. The signature reform of the Federal Rules was to shift pretrial procedure from pleading to discovery. A new system of civil procedure emerged, centered on the discovery of documents and the sworn depositions of parties and witnesses. Related innovations, the pretrial conference and summary judgment, reinforced the substitution of discovery for trial. This new procedure system has overcome the information deficit that so afflicted common law procedure, enabling almost all cases to be settled or dismissed without trial. Pretrial procedure has become nontrial procedure by making trial obsolete.

Thursday, August 02, 2012

Blogging Hiaitus

Multiple time constraints have made it impossible to keep up with a regular posting schedule at this blog.  Thus, I am making explicit the fact that I will not be posting to this blog with any regularity for the foreseeable future.  If something critical arises that is of interest to civil procedure, I may post about it.  Otherwise, I direct your attention to the very ably managed and frequently updated Civil Procedure & Federal Courts Blog available at

In the meantime, I will make an effort to post links to civil procedure related news at my Twitter feed, which is @PROFSPENCER.