Recently the Connecticut Bar Association announced that providing legal representation for the indigent in civil cases would be a top priority for the coming year. This is a laudable goal, but it is not enough. The civil justice system is broken and beyond band-aid fixes.
The average individual and small business dragged into court can no longer afford to defend or prosecute a claim – period. The monetary costs and time delays in "getting to trial" have passed the point of reason. This is an old cry, but today the problem has become so serious that it threatens to undermine public confidence in our legal system's fundamental fairness. This is not a clamor for perfect justice, but simply a demand that dispute resolution not entail a choice between insolvency and surrender. How many times have court practitioners seen their clients forced to resolve cases not because of any question related to the merits, but simply because the cost of proceeding further was beyond their reach or they had been worn down by interminable time delays?
Extended motion practice and never-ending discovery burdens long ago drove most, if not all, cases into the six-figure range of expense and a two- to three-year time investment. Why is the number of trials dropping all over the country? Is it because of some inherent defect in the bench or jury trial process itself? No, it is because of defects in the procedure that must be endured to get to trial. Years of uncertainty and mounting costs simply drive the less well-heeled client to surrender without anyone hearing their claim or defense except the concerned lawyers and, perhaps, a few deposition attendees.
In Connecticut, both the state and federal courts have tinkered with various ideas for relieving this problem. Standardized discovery, Rule 26(a) disclosures, the state's Complex Litigation Docket, the current state experiment with assigning cases to judges for the life of the matter, and adjustments made to the federal and state discovery rules have all been driven by a desire to increase the efficiency, and, thus, the affordability, of litigating civil cases.
The simple fact, however, is that it has not worked and further minor adjustments to each system are not going to change anything either. The efforts that have been made to streamline the litigation process at both the state and federal levels are akin to fighting a raging California forest fire with a few shovelfuls of sand. The civil trial either by bench or jury is well-suited to reach a fair and just result. Of course, there are examples of justice miscarried. No one would deny that, but the continual and growing pattern of systemic injustice and of failure to resolve civil disputes fairly because of the costs in time and treasure of our present pre-trial procedures demands radical reform if the civil justice system is to maintain the public confidence that it has earned over the last 200 years; a public trust and confidence that is essential to the orderly development of our diverse society. We have a few suggestions.
First, at the state level, amend the Practice Book to establish notice pleading once and for all. Allow for a single motion to dismiss/strike in each case, abolish the request to revise, and permit a request for summary judgment. Terminate the wasteful practice of rotating judges amongst courthouses and expand the current experiment of assigning a case to one judge for its full duration up to and including trial.
In both the federal and state systems, limit discovery to a maximum of two sets of production requests for each side, depositions of identified fact witnesses and two sets of interrogatories with a defined number of questions and sub-questions. Require the kinds of initial disclosures envisioned, although not often enforced, under FRCP 26(a) or consider the example provided by the Initial Discovery Protocols for employment cases, promulgated in federal court under Judge Arterton's oversight. They offer a good guideline to the kind of disclosures that would measurably assist in putting the brakes on a runaway discovery process.
Hold a meaningful litigation planning meeting at the inception of each case, require a written litigation/discovery plan from the parties, and make them stick to it absent extraordinary circumstances. Put a stop to the growing practice of turning every case into a battle over electronically stored documents. Finally, and, most importantly, in the event of a discovery dispute being taken to court, require the loser to cover the costs of the resultant motion practice.
Perhaps the most fundamental change would be to see judges move from a passive or reactive case management stance to an aggressive, affirmative, proactive position. Both the federal and state systems might benefit from a variation on the ATR/Special Master idea. If the judges do not have enough time actively to manage their dockets, use attorney volunteers to do so.
Most importantly, whatever remedies might be adopted, the courts should focus on trying cases not settling them. Those that should be settled on their merits will be, but forcing settlements by putting litigants through a procedural meat grinder designed to accomplish nothing but increase lawyers' fees and kill trees is counterproductive to the true purpose of our system, or any system, of dispute resolution. We should not follow the course set out in Charles Dickens' Bleak House. We must do better.•