Rebuilding Justice

10/24/2011 11:43 am ET | Updated Dec 24, 2011

The civil justice system is in jeopardy. It is overloaded, bogged down, politicized and inaccessible. And -- it is now woefully underfunded. I have written a new book with co-author Dirk Olin, called Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care, that explores those problems and proposes solutions.

So, let's take the problems one at a time. A lawsuit takes way too long and costs way too much. Only 1 percent of cases actually go to trial; the rest settle out of court -- and probably not because of the merits of the case, but rather because one party or the other has run out of money. Remember that civil suits are the cases that impact everyday life: property disputes, foreclosures, personal injury cases, breach of contract cases.

That process is capsizing. For example, discovery. Discovery is all about the lawyers uncovering information about the case from the other side. It can take the form of document production, written questions to the other side, or depositions. Before computers, for most cases, all of the documents used to fit in a few files or boxes.

Now, we have electronic information -- documents, drafts, emails, voice mails, text messages -- all of which can be discoverable in a lawsuit. So, it is the worst of all possible worlds: an era in which discovery is often unlimited -- and the information being discovered is unlimited. Read: cost. Parties frequently list and depose dozens of witnesses. Read: more cost. And, cases can take years to resolve -- being subject to continuances, delays, perhaps even a change of judge midstream. Read: even more cost.

The answer to this is that judges need to manage their cases proactively. They need to nix unnecessary motions and continuances, and impose limits on discovery. And, judges and lawyers need to change the rules so that each case gets the time, attention and discovery it needs: no more and no less.

However -- problem two. Court budgets are being slashed. This year, 78 percent of courts were required to cut their budgets, on top of 2010 and 2009 cuts. Almost all courts are now experiencing shortened office hours, closures and staff cuts. Those budget problems magnify the more fundamental problems of complexity and cost because judges and court staff must handle criminal and juvenile cases first -- and the civil cases are moving farther to the back of the line.

What is the answer here? Legislatures have to fund courts. Justice is a core function of government, not a discretionary social program. And, on the flip side, courts have to do more with less, like everyone else and be more efficient, innovative and accountable.

Lastly, there is plenty of money flowing in another -- wholly inappropriate -- arena: judicial elections in the states. Spending on judicial elections has more than doubled in the last decade, and now a state Supreme Court seat can cost millions of dollars. Judges have to campaign on issues that may come before them, and raise money from people who have a stake in the outcome. That does not work. Rather, judges must be fair and impartial. They cannot be sticking their finger in the wind to assess public opinion or putting their hand on their wallet before making a decision.

What is the answer to this? The solution is not to get rid of elections: there is nothing wrong with voters having a say about judges. But, there is a way to do it that protects judicial impartiality and keeps cash out of the courtrooms.

First, committees (including a majority of non-lawyers) screen judicial applicants and recommend a few to the governor. The governor then appoints one for a provisional term. During that term, the judge is evaluated in a formal judicial performance evaluation: a report card, so voters know their record. Not how they vote on hot-button issues: we have to leave justice to the judge; but rather things like whether the judge is prepared, knowledgeable, and makes decisions in a timely and understandable way.

Then, judges appear on the ballot for vote -- but a yes/no, up or down vote. If the voters have the report card, they can decide whether to keep the judge in office. These kinds of elections are called 'retention' elections, and 16 states have them. No surprise: polling shows that citizens and businesses in these states are more likely to have confidence in their courts.

The call to action: legislatures must fund courts; judges and lawyers must streamline the process; and voters must be aware of the danger of politics in the courtroom and choose systems that keep politics as far out of the mix as possible. Together, we must "Rebuild Justice."