s a society, we seize upon measurements. At this time of year, sports fans focus on RBIs and ERAs that rank the best and worst players in Major League Baseball. But day in and day out, we measure return on our financial investments, school achievement scores and volume in a cereal box. Closer to our wallets, we are now agonizingly familiar with the number of miles we can eke out of a gallon of gas.
We have now also taken to measuring the courts, from public opinion polls to state- by-state rankings and performance evaluations. This is a very healthy development.
In just the past few months, the University of Chicago, University of California, U.S. Chamber of Commerce, Wall Street Journal and a consumer organization called HALT have all released reports comparing various courts to other courts and ranking judges. Analysis of what may or may not work in our civil justice system is the first step to finding constructive solutions. And so, if a headline that touts a court’s high or low marks makes us think about our judiciary as an institution that must strive to improve, so much the better.
The customers of the courts have become more dissatisfied than ever with the service they are receiving. Much like the car that hits a pothole and can no longer hold a straight course, our legal system seems seriously out of alignment.
Generations of Americans have been raised with the assumption that our civil justice system is accessible to all. We have taken for granted that if we find ourselves in a lawsuit, the system will provide a “just, speedy and inexpensive” outcome, as the Federal Rules of Civil Procedure state.
But for too many of us, this has become an empty promise. In 2005, 17 million civil cases were filed in state courts nationwide — and that doesn’t even include criminal filings. If we assume at least two parties to a case, that’s 34 million people who walked through the doors of a courthouse somewhere in America, seeking help to resolve a divorce, contract dispute, personal-injury claim, foreclosure or myriad other crucial matters.
The costs of those proceedings is soaring, and the friction caused by the overlapping trends of soaring cost and delay in the system and increased public demand for service is at the heart of public dissatisfaction. So, how did we get here and what can we do?
Finding the problem is usually a matter of checking under the hood to see which pieces — among many moving parts — are no longer working properly. This is especially true when you are dealing with a vintage model like the U.S. legal system. The rules that govern our civil process are 70 years old, and they are based on outdated assumptions, including the premises that only a few cases require expert witness involvement, and that information in a lawsuit is finite and manageable at a reasonable cost.
In the 21st century, neither of those premises hold true. More and more cases make use of expert witnesses and electronic information, driving up attorney and expert witness costs. A “mid-sized” lawsuit today can easily involve millions of e-mails, voice mails and a vast assortment of other data that must be sorted and reviewed at a staggering cost.
So, as a first step, we need to rebuild our legal system to reflect the realities of a complex, new age and to bring the costs associated with lawsuits back to a level proportional with the dispute itself.
We also need to revisit the traditional business model practiced in law firms nationwide. Although attorneys are genuinely committed to equal justice and an accessible system, most work at an hourly rate. Reform in this area will require a shift in the way law firm leaders view their bottom line. We need to return to a method of billing that values service and not time.
A final problem rests with the “face” of our courts: the judges. They are underpaid but are expected to manage crushing caseloads on a daily basis. We need sufficient judges, and we need to pay enough to allow the best lawyers to become judges. Judges must embrace the fact that they are public servants, not enshrined constitutional officers. Emphasis on customer service — managing cases fairly, efficiently and respectfully — must become the rule and not the exception.
The concepts of due process, equal justice under law and universal access to the courts are strong and true, but too often the concepts do not mesh with reality. We must refocus the system on the needs of the users. We must commit ourselves to simplifying the system, making fees and costs proportional to the dispute and restoring public trust and confidence.
It will take all of us to make this happen. Judges, lawyers and the users of our courts must all agitate for constructive change. And so, bring on the surveys, report cards and rankings. They are a positive sign of genuine concern and a harbinger of the solutions to come.
Rebecca Love Kourlis, a former Colorado Supreme Court justice, is executive director of the Institute for the Advancement of the American Legal System at the University of Denver.
