The following is an excerpt from “Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care,” published last month by Fulcrum Publishing.
The justice system is fundamental to our democracy. The courts are the counterweight to the other two branches of government, assuring that no branch becomes overzealous. Our Founders specifically established a system of government that is not pure majoritarian rule; rather, it is a system that focuses on protecting the rights of individuals-even against the majority if need be. The courts are the last line of defense for those rights-the safeguard. And, just to be clear, this is about more than the rights that attach to criminal prosecutions or defense. The legitimacy and trustworthiness of the courts underlie our willingness to enter into a contract, hire or be hired, buy a house, drive a car, or get married. The individuals who wear the mantle of this responsibility include not just judges, but jurors as well. We are the only country in the world that has the benefit of a right to trial by jury in civil cases as well as criminal cases, and the enshrinement of that right in the Seventh Amendment was no accident. The courts were positioned to balance the excesses of the executive or legislative branches, and the jury to balance the excesses of the judges. Lady Justice, more even than the Statue of Liberty, is the beacon of our freedom, our way of life, and our sustainability as a country.
Now, for the bad news.
Justice is in jeopardy, for a variety of reasons, but few Americans know or care. When the education or medical services systems are at risk, there is a national uproar. But, as chapter 1 addresses, because a majority of the American public does not understand the courts or recognize how vital they are to our body politic, there has been no public outcry about the justice system.
Why is justice in jeopardy? We begin our exploration with some of the fundamental players who operate within these federal and state systems: the judges. Judges come to their positions in a variety of ways. At the federal level, the system is appointive-judges are nominated by the president, confirmed by the Senate, and then serve for life or until resignation, retirement, or impeachment. This appointment process is increasingly politicized and lengthy.
In state courts, where selection systems significantly diverge from that of the federal judiciary, these problems are heightened. Although something of a mishmash, they generally fall into three categories: appointment, election, or “merit selection.” In states where judges are elected, judicial candidates-especially at the supreme court level-have run increasingly no-holds-barred expensive election campaigns in which they malign their opponents and align themselves with particular interest groups. There is an entire movement that seeks to make courts more accountable to partisan ideology-a reasonable goal if judges are just one more species of political hack. But they’re not, as we will explain in chapter 2.
Jury trials have fallen prey not only to skepticism, but also to the expense of the pretrial process that depletes the resolve and resources of parties to a lawsuit before they ever get to a jury. The tortuous process of getting a case ready to go to trial (and paying for that preparation) might actually have the effect of ensuring that it never gets there. This is a trend we must reverse. When we as jurors are present in the courtroom, the whole process is more inclusive, transparent, and, well, democratic. It is the way the system was intended to operate.
The shared component for these players is the stage on which they meet: the system itself. Our focus is the civil justice system-the taken-for-granted and much misunderstood civil justice system.
At both the state and federal level there is a complex support structure for the courts. This complex support structure is at risk as courts face free-falling budgets. Legislators are forcing the courts to figure out ways to cut out case types, cut back services, reduce jury trials, and add more folks who act as judges (but who are really not judges) to resolve cases more cheaply. Criminal, juvenile, and family cases necessarily move to the front of the line, and civil cases languish at the back. This is a multifaceted problem that, as we will discuss in chapter 4, threatens to destroy the system from within.
The cost of litigation is one of the factors driving this implosion of the civil justice system. Litigation is the formal name for the lawsuit business-and it is a business. In this business, discovery is the name of the game, not trial. Discovery is the process by which the parties to the lawsuit demand information from each other. That information can come in the form of written questions, inspection of documents, or oral examination under oath. Discovery can be used and abused not to seek truth, but rather to increase costs, cause delay, and create inconvenience-all with a view toward leveraging settlement. We will explore the interplay of the rules of civil procedure and the issue of costs in chapter 5.
The problems of court funding and excessive litigation costs can come together to reduce access to both the state and federal civil justice systems for all but the very wealthy. This is, however, not a death knell-provided that there is the necessary support for innovation and solutions, as we will explore in chapter 7.
Finally, the issues identified above-budget crises, expensive and time consuming pretrial procedures, and reduced access to courts-are even more acutely felt in family cases, where the very nature of the process involves litigants in crisis. Chapter 8 will explore the issues faced by children, families, and individuals as they move through the domestic relations process.
So walk with us through the courts of the second decade of the twenty-first century as we chronicle the problems and identify some possible solutions. This is important stuff; the courts require the support of a knowledgeable and attentive citizenry if they are to continue to guard the ramparts of our way of life.
