For more than fifty years, I've practiced commercial law with a singular mindset: Isolate the issues and bring them to a conclusion, swiftly and judiciously. But despite this day-to-day philosophy, I've come to a troubling conclusion. The civil justice system today -- whether dealing with simple or complex matters -- takes so long and costs so much that it no longer serves as an effective tool in regulating society's legal matters. In the end, the system has become so dysfunctional that it's virtually impossible for the average person to rely on it as a means of resolving disputes.
The problem is not with our basic democratic principles. Over the years, the American legal system has evolved according to the will of its people, ensuring continuous moral and lawful equality. But the administration of the law has not evolved fast enough to match the needs of a culture driven by accelerating technological change. Today, our courts are mired in delay, bogged down with tens of thousands of cases. Lawsuits often take years, cost hundreds of thousands of dollars, drain us psychologically and produce outcomes that no one can predict. Day by day, with each legal experience, people are losing confidence in our system's ability to deliver justice.
All of these problems relate to time: Time is the enemy. Time is money and frustration that blunts the moral imperative of any court attempting to dispense justice. The old saying, "Justice delayed is justice denied," is more than an axiomatic statement. It has a deep and abiding meaning for our civilization.
Still, there are ways the legal system can not only be fixed, but substantially improved. For instance, we can require that the same judge be assigned each case, from beginning to end. Facing a different judge at each legal appearance depersonalizes all judges. Judges must be seen as a people, not anonymous manikins in black robes; they should not appear remote; they belong in the case.
Judges who follow a case to its conclusion would be able to learn much more about litigants' motives. Deliberate stalling by either party would be more difficult, since it's harder to do so in person than on paper--particularly when facing the same judge at every session. For their part, judges would have more opportunities to develop a sincere interest in the fair resolution of each case, and litigants, in turn, would likely sense the judge's true interest. Furthermore, much less paperwork and time would likely be wasted on painstaking analysis, passed from court to court. Some other examples of "time-killing" methods:
- Streamline pretrial paperwork, eliminating the endless exchange of written bills and motions. Discussions could take place in front of a judge, with clarifications and questions addressed until they're mutually understood and settled.
- Require plaintiffs to pay expenses if an appeal is lost. Everyone deserves a fair trial, but if a plaintiff loses a case and appeals, then he or she should pay the defendant's expenses accrued beyond the trial. Under this procedure, a malicious plaintiff could no longer prolong a suit without personal risk.
- Bar contingency fees. Many litigants choose a contingency deal with their attorney because it appears cheaper; they don't have to put any money up front. But the real solution is to strip time out of the legal system, so litigation requires less money and people would be less pressured to gamble on their lawyer's success.
- Require litigants to attend their pre-trial procedures. Today, few litigants go to court with their lawyers, often because the cases are confusing and time-consuming. But the courts were meant for ordinary people; plaintiff and defendant must be made to feel that justice is in their hands, too.
- Expand the role of magistrates. Thousands of these appointed lawyers already assist federal district court judges who cut the judicial caseload by performing various duties. An expansion of the Magistrate Judge System is long overdue.
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