In the recent blog post "In Our Courts 'Justice' Is Bought," Lance Soskin argued that "litigation is a multi-billion dollar industry that favors the wealthy" and "leaves the rest of the population at a significant disadvantage." He referenced a portion of an interview I gave in 2011 regarding the state of the American Justice system in which I said "If you get in a car wreck, and there's an argument about who should be paying damages, your assumption is that you can go to court to have that case resolved. The truth of the matter is that's probably the last place you want to be, because the fees and the costs will ultimately be more than your car is worth, even if you drive a really nice car." Soskin goes on to argue that the answer is to make "better use of alternative dispute resolution options such as mediation and arbitration."
I take a different approach. While mediation and arbitration certainly have their place, we cannot and should not abandon the system itself. What we need is a justice system that is more accessible, efficient, and accountable. While the answers to the current civil justice system crisis are complex, we are working here at IAALS, the Institute for the Advancement of the American Legal System, to collect the data, conduct the research, and bring together the right people to develop recommendations for improvement. We think the answer lies in giving more people access to the system by addressing its shortcomings head on, and fixing them, rather than simply directing people to alternative methods of conflict resolution. And, just in case there is any confusion: the issues with the civil justice system are not limited to the small cases. Large or small, few cases go to trial, often because one or both of the parties cannot afford it after the burdensome discovery that has become commonplace. The electronic age has only magnified this problem. In the very large cases with millions in attorneys' fees, the costs of producing and reviewing the electronic information can easily add several additional millions in costs. So we have a system that needs to be rebuilt so that it provides just, speedy, and cost-effective outcomes for all litigants.
IAALS' Rule One Initiative is devoted to just that goal. Under this Initiative, IAALS makes recommendations, works with various stakeholders and jurisdictions to develop improved processes and procedures, and monitors changes. Utah is one state that has implemented rule changes recently to address the concerns raised above. In addition to implementing an expedited jury trial program for smaller or single issue cases, Utah also implemented more sweeping changes, with discovery further tailored based on the amount in controversy.
As I noted in the referenced interview, "The answer is to fix the system. The answer is to assure that anyone with a legitimate claim or a legitimate defense has access to a system that works . . . ."