Defining Civil Disputes: Lessons from Two Jurisdictions
Abstract
Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions — the United States and Australia — to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary comparative analysis of the approach to pleadings in the United States and Australia, this article recommends that courts should rethink the function of pleadings, alter litigation incentives, and refine case management practices. This will lead to earlier issue identification, better framing of the discovery process, and a more efficient litigation process.
