An equitable society needs a place for its citizens to resolve personal conflicts -- and one that isn't too expensive or inefficient.
Civil justice is important. It does not get as much attention as the criminal justice system because the public safety issues are not as apparent. But for the vast majority of us, it's the law that most affects us -- property, contract, personal injury, construction, etc. -- and it does so daily. The civil justice system ensures that our lives can function, grounded in the rule of law.
But that system is currently plagued by high costs and complexity. For example, let's say your teenage daughter gets into a car crash with an uninsured motorist. She is badly injured and has to have shoulder surgery that eliminates her ability to get that tennis scholarship to college -- and now you must pay for the car, the medical bills, and college. You need to sue the uninsured driver. It's likely, however, that the costs of the litigation will exceed your losses -- and even more likely that it will take years to resolve the case. Too often today, the last place to go for actual justice is civil court.
Why? Runaway discovery and motions practice has led to runaway costs. A relatively small lawsuit can involve tens if not hundreds of thousands of dollars for depositions and document exchanges. Most attorneys today won't even consider taking cases where the possible award is under $100,000. Most lawsuits settle when one party or the other runs out of money, or when the cost-benefit scale tips. Indeed, only one percent of all civil cases ever even get to trial. As a result, the civil jury trial is all but gone.
That may sound like a relief for all of us who think an out-of-court settlement or alternative dispute resolution is always better, but trials are an important part of civil justice. They provide transparency. Bench trials provide an opportunity to develop written law on standards and precedent, and jury trials allow community members to make the decisions. There is a reason the Bill of Rights assures trial by jury. Jurors are citizens and most are practical, fair, and take their responsibility as jurors very seriously. They also have little patience for gamesmanship.
Why should a plaintiff or a defendant with a legitimate claim or defense have to settle it rather than have the affordable opportunity to get a jury's take on it? A lawsuit should not be a game, played out in the pretrial process; rather, it should be about the pursuit of truth -- and ultimately justice -- in an effective, targeted, and affordable way.
The good news is that we can fix the system. With collective will, we can replace the broken pieces with pieces that work.
1. We must assure that the courts are appropriately funded. Anyone who is following the closure of 56 Los Angeles courtrooms -- and the consequent impact on citizens who need protective orders, divorce decrees, finality in civil cases, or a determination of where their children should live -- cannot dispute the importance of viable courts. Similar stories abound in courts across the country.
2. We must choose and train the right people to be judges: people who come to the bench in a process that protects impartiality. We must train them well, in areas of core competency. In some jurisdictions we must reduce judicial caseloads, and in almost every jurisdiction we must pay judges more equitably so that the bench attracts and keeps dedicated people. Public service should never be a way of getting rich, but it should also not be punitive.
3. We must demand that judges manage cases more effectively, including providing more oversight and triaging cases and issues. Judges need to become involved early in cases and stay involved until the end. They need to resolve motions speedily and minimize continuances -- where clients pay double costs for their lawyers and witnesses to prepare once, and then again a second time. We must develop and apply court and judicial performance standards that measure and encourage fairness, good judicial management, and efficiency.
4. We must revise the rules of civil procedure -- both at the state and federal levels -- to streamline the process, limit discovery, limit motions filing, and limit experts. The process must be proportional, tailored to the size and nature of the dispute, and provide what that dispute requires -- no more.
5. We should remove the majority of divorce cases from the adversary court system and create an alternative that gives families access to needed services, counseling, and financial planning advice in an environment that encourages them to resolve their own disputes.
Our democracy, our economy, and our freedom are all dependent upon having accessible and fair courts. We have the basic framework of a system well worth preserving -- but we must act now to improve how it works in practice.