Defining Civil Disputes: Lessons from Two Jurisdictions

Authors

Elizabeth G. Thornburg, Southern Methodist University, Dedman School of LawFollow
Camille Cameron, Dalhousie University - Schulich School of LawFollow

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.

Publication Title

Melbourne University Law Review

Document Type

Article

Keywords

United States, Australia, civil disputes, litigation

Recommended Citation

Elizabeth G. Thornburg and Camille Cameron, Defining Civil Disputes: Lessons from Two Jurisdictions, 35 Melb. Univ. L. Rev. 208 (2011)