Revisiting the Integration of Law and Fact in Contemporary Federal Civil Litigation

REVISITING THE INTEGRATION OF LAW AND FACT IN CONTEMPORARY FEDERAL CIVIL LITIGATION Elizabeth M. Schneider* INTRODUCTION In 2004, Steve Subrin and Thomas Main published an article with an intriguing title: The Integration of Law and Fact in an Uncharted Parallel Procedural Universe.1 It has always been one of my favorite Subrin articles and was published in a volume honoring David Shapiro. So I want to carry on this tradition for this volume honoring Subrin’s important contributions to procedure scholarship. I want to revisit many of the issues raised in that article, in light of new developments over the last ten years, along with Subrin and Main’s most recent work, The Fourth Era of American Civil Procedure.2 Steve Subrin is one of the few civil procedure scholars who has closely analyzed the integration of law and fact.3 Parallel Procedural Universe criticizes traditional litigation under the Federal Rules of Civil Procedure (“FRCP” or “the Rules”) and argues that the formal litigation process does not adequately provide for the integration of law and fact. Subrin and Main look at what they called the “uncharted parallel procedural universe” of litigation statements and demand letters that are “outside” but “parallel” to the formal litigation system. They argue that these documents do a better job of integrating law and fact than the formal litigation process. They also do empirical research interviewing lawyers and examining “parallel universe” documents, which is fascinating. * Rose L. Hoffer Professor of Law, Brooklyn Law School. An earlier version of this essay was presented at the Symposium, Through A Glass Starkly: Civil Procedure Reassessed, honoring the scholarship of Professor Stephen N. Subrin at Northeastern University Law School, April 11–12, 2014. Thanks to participants in the Symposium and the Brooklyn Law School Summer Faculty Workshop for helpful comments, Claire Gavin, Brooklyn Law School ’16 for excellent research assistance, and students in my Civil Procedure and Federal Civil Litigation, Public Law and Justice classes who have helped me explore these issues. Thanks also to the Brooklyn Law School Faculty Research Program for generous support. 1 Stephen N. Subrin & Thomas O. Main, The Integration of Law and Fact in an Uncharted Parallel Procedural Universe, 79 NOTRE DAME L. REV. 1981 (2004). 2 Stephen N. Subrin & Thomas O. Main, The Fourth Era of American Civil Procedure, 162 U. PA. L. REV. 1839 (2014). 3 See, e.g., Phyllis Tropper Baumann, Judith Olans Brown & Stephen N. Subrin, Substance in the Shadow of Procedure: The Integration of Substantive and Procedural Law in Title VII Cases, 33 B.C. L. REV. 211, 243–52 (1992). 1387 1388 NEVADA LAW JOURNAL [Vol. 15:1387 The interrelationship between law and fact should be a crucial and foundational issue in legal scholarship, legal education, and legal advocacy. Yet, there is little scholarship that focuses on the distinctions and interrelationship between law and fact, and it is under-theorized. I think many law teachers and legal scholars take it for granted; perhaps it is viewed as “old school,” “obvious,” and “should not have to be spelled out.” There is also little focus on how law and fact are integrated in legal advocacy. This absence is especially problematic in civil procedure scholarship and teaching, but in many other areas as well. In my own teaching of civil procedure, always in the first semester of law school, I emphasize the constant back and forth process between law and fact that lawyers must understand. If law students do not get this crucial insight, it is difficult for them to understand what they are doing for the next three years, and what they will be doing as lawyers. I also emphasize the distinctions between law and fact, central to so many areas of procedure, as I have detailed elsewhere.4 In this essay, I reassess the critique that Subrin and Main made of the formal procedural system in failing to integrate fact and law. I also look at this critique in light of recent judicial decisions, rule-making, and scholarly developments. I conclude that there are now even more hurdles to the integration of law and fact in the formal procedural system. Integration of law and fact in the formal procedural system is now further abbreviated, fractured, random, and piecemeal. Procedural opportunities for narrative that combine both law and fact are fast disappearing because of Supreme Court decisions, rulemaking efforts, and the ways in which judges are making decisions. I. INTEGRATION OF LAW AND FACT: THE FORMAL PROCEDURAL SYSTEM In Parallel Procedural Universe, Subrin and Main explain that, within civil litigation, two different systems are at work procedurally. “One of these is the formal system of procedural rules and doctrine that govern pleadings and motion practice in state or federal courts. The other system has no procedural rulebook, is largely ignored in law schools, and is seldom mentioned by judges.”5 The second is “the universe of correspondence and other materials that flow between adversaries but seldom appear in the pleadings, motions, or other 4 See Elizabeth M. Schneider & Nancy Gertner, “Only Procedural”: Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases, 57 N.Y.L. SCH. L. REV. 767, 768–69 (2012–13) [hereinafter Schneider & Gertner, Only Procedural]; Elizabeth M. Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases, 158 U. PA. L. REV. 517, 530 & n.59 (2010) [hereinafter Schneider, Changing Shape]; Elizabeth M. Schneider, The Dangers of Summary Judgment: Gender and Federal Civil Litigation, 59 RUTGERS L. REV. 705, 718 (2007) [hereinafter Schneider, Dangers of Summary Judgment]. 5 Subrin & Main, supra note 1, at 1983. Summer 2015] INTEGRATION OF LAW AND FACT 1389 papers contemplated, ordered or even received by any formal procedural system.”6 Subrin and Main note: We have observed that many civil litigators, particularly those representing plaintiffs, seem to find it both desirable and necessary (in order to achieve optimum results for their clients) to prepare various written documents, notebooks, and even videos containing narratives that integrate the law and facts of their cases in ways that may persuade their relevant audiences—the opposing lawyer, the opposing lawyer’s client, their own client, insurance companies, and mediators. These advocacy materials appear in myriad forms, including demand letters, other settlement correspondence, notebooks, mediation statements, edifying brochures, and documentary videos. . . . Although we recognize that pleadings, motions and other papers filed with courts may occasionally contain integrated narratives of law and fact, we were intrigued because the procedural rules of the formal system seldom require it.7 Subrin and Main argue that this “dichotomy” between the form (...truncated)