Judges need to become more actively involved in each case -- throwing out ridiculous claims, conferring with each side, and explaining their decisions.
It was once conventional wisdom that in every lawsuit "there are two successive objects: to ascertain the subject for decision, and to decide." Somehow in the course of adopting and implementing the Federal Rules of Civil Procedure of 1938, however, we forgot that wisdom. Today, civil suits infrequently frame the issues for decision, and infrequently result in final decisions on the merits.
This is in large part due to two peculiar aspects of American civil justice. First, American judges are disempowered from asserting common-sense control over cases. American civil procedure treats judges as automatons whose only job is to meekly referee spats between lawyers, rarely interjecting their own common sense into disputes.
Second, American judges often don't know what they are to decide. American civil procedure, led by "notice pleading," denies them such basic information as precisely what parties want, what parties agree on, and what is actually in dispute. Consequently, civil justice generally fails at its essential purpose: application of law to facts to determine rights. There is no judging.
In other countries' systems of civil justice, judges actually judge. They frame issues, they take evidence (when needed), and they decide cases according to law. Judges do not leave procedural decisions in the hands of competing lawyers, who naturally seek advantage -- they guide process. From the beginning of the lawsuit, they impartially apply law to facts to determine parties' claims under the law. The parties are required to help. The German system in particular provides a clear example of how a civil justice system can work better.
Comparing how American process works to its German counterpart highlights five ways in which our own system is defective:
1. In Germany, parties must tell judges about their claims at the outset. In their complaints, German plaintiffs are required to state facts that support their claims. They must identify evidence upon which they plan to rely; defendants, in turn, must substantiate denials with facts where possible. In the United States, by contrast, plaintiffs reveal few facts and identify little evidence in their complaints. Before 1938, they had to at least state facts.
2. German judges "live" with cases from the start. Judges, not defendants, are the first people to read plaintiffs' complaints. Upon filing, judges review complaints to make sure that they meet procedural requirements and determine whether the facts alleged, if proven, would support judgments. Only after judges have reviewed complaints are they served to defendants -- baseless complaints ordinarily don't get this far.
In the United States, on the other hand, judges do not review complaints before service or often at any time. After service, on defendants' request, they may review specific aspects, but this post-service review, in comparison to its German counterpart, is protracted and expensive. A requirement (embodied in two recent Supreme Court decisions, Twombly and Iqbal) that there be a finding that asserted claims are legally "plausible" was met with vociferous criticism.
3. In Germany, judges and parties cooperate to frame issues. When German judges authorize complaints for service, they generally direct parties to go into conference together. In these conferences, judges confer with both sides -- not just with both sides' lawyers but with the actual litigants themselves. In discussions with the parties, they frame the issues that they will need to decide to judge cases. They clarify what plaintiffs seek, they identify which legal rules might apply, and they establish which facts are material and in dispute. Parties are under a statutory duty of cooperation to answer judges fully and to substantiate claims with offers of evidence where appropriate.
In the United States, judges often do not hold early pretrial conferences, and when they do, these conferences are typically used to set deadlines rather than frame issues. Rarely do they require the litigants to be present. Parties are under no duty of cooperation (although the Federal Rules Committee is currently considering one).
4. German judges take evidence only on disputed issues of material fact. Judges do not waste time with evidence that they do not need for their decisions -- i.e., evidence that does not contribute to resolving a disputed material issue. For issues that are material and in dispute, parties may ask the court to take evidence. Judges rule on these requests in written orders, in which they determine specific issues on which evidence may be taken from particular witnesses. They take evidence only in court. Judges are subject to a statutory duty of clarification which requires that they not decide material issues adversely without making parties aware that they need to offer evidence or otherwise contest the particular point.
In the United States, in contrast, the parties themselves get to determine what evidence to seek. Without court order and outside of court, they may force their opponents to divulge any evidence that they deem "relevant" to a claim or defense. They are not limited to taking evidence regarding matters that are material and in dispute, leading to hugely expensive and time-consuming evidence-gathering free-for-alls.
5. German judges explain their decisions. German trial judges are required to explain their decisions fully -- i.e., to state the undisputed parts of the case, to set out the parties' conflicting arguments, and to explain their reasons for resolving those disputed issues as they did. In the United States, judges do justify their decisions in bench trials, but such trials are comparatively rare; juries, do not justify their decisions at all; jury verdicts leave parties in the dark.
The virtues of German civil justice are clear. In the German system, judges are narrowing issues in dispute from the beginning. By the time they are ready to decide the case, the parties know upon which disputed facts the decision will turn. With each step forward, the decision of the case becomes increasingly predictable. Parties may read the handwriting on the wall and settle the case, not because the costs of going forward are too high but to avoid the litigation risk of an adverse decision. Throughout the process, an engaged and empowered judiciary ensures a speedy, reasoned, and equitable resolution.
What the United States needs are judges that decide. The job of judges is not to superintend contests -- it is to judge. Through taking an interest in applying law to facts from the very beginning of lawsuits, American judges may help Americans realize at long last the right that they have claimed since 1776: that everyone "ought to have remedy by the course of the law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the law of the land."