To The Editor
Having read Chief Justice Chase Rogers’ Jan. 2, 2012 piece entitled "Taking Steps to Re-Engineer Court System," I would like to make three suggestions. However, before I do, I feel compelled to state the obvious: as a budgetary constraints increase, waste of time and/or money must decrease. Here goes:
1) Do not allow any attorney/firm which has not been granted a "Request for Exclusion from Electronic Services Requirements" to "opt out" of accepting service of litigation related documents from other attorneys via e-mail. The form that must be filed in order to obtain such an exclusion contemplates that such an exclusion may only be granted if an attorney/firm "does not have Internet access" or "other." I’m not quite sure what excuses would qualify under the heading of "other." In any event, a logical extension of requiring that filings with the court be made electronically is that such filings be communicated to opposing counsel in the same fashion. It is difficult for me to imagine a situation in which an attorney’s office that files motions/pleadings, etc., with the court electronically, could not just as easily transmit those filings to counsel electronically. Unfortunately there are firms with e-mail capability who nonetheless "opt out" of accepting service electronically.
Using conventional, paper and ink mail when e-mail is available is an utter waste of time and money. Although I understand that instituting this rule would not save the court system, per se, any time or money, I believe that the system should step up and prohibit those practices which compel attorneys to waste time and money, especially when it is completely unnecessary, not to mention environmental he unfriendly. When attorneys are compelled to waste time and money they are not able to maximize the quality of their representation of clients.
2) Make ADR optional, not mandatory. Allow either party to opt out. Although I cannot recall what year mandatory ADR came into existence, I’m sure it was well after I began practicing. As such, I have been able to observe, from my admittedly limited perspective, its efficacy since its inception. Although its goal is laudable, its results are dismal. I, along with my clients, opposing counsel, arbitrators, and court staff managing the scheduling of arbitrations, have wasted countless hours over the years engaging in a procedure that, as far as I can tell, rarely produces the desired results, namely, a resolution of a claim. In all my years of practice, the total number of claims I have been able to resolve through mandatory ADR is zero.
That’s right, zero. Lest anyone believe that I could have been responsible for such an extreme failure rate by repeatedly rejecting arbitrators’ awards, it should be known that I have rejected only two awards in all the years that I have practiced. For the record, I feel no ill will toward my opposing counsel who are responsible for over 95 percent of the rejected awards.
3) Amend Practice Book Section 13-7 to automatically grant 60 days, instead of 30, for a party receiving "standard" discovery requests to comply with those requests. At first blush this may seem like a small and technical point. However, the section, in its current form, invites the inevitable request for extension of time in which the receiving party asks for 30 more days to respond. These requests are never objected to, and therefore always granted, for the simple reason that no good grounds exist for an objection.
The filing of the request with the court, its transmission to opposing counsel, the transmission of the "ready" marking to the court and counsel, the granting of the request and the transmission of the notice of the granting of the request happens, I daresay, thousands and thousands of times per year across our many judicial districts. This is a complete waste of time and resources not only for attorneys, but, in this instance, also for the court system.
Although none of these suggestions will revolutionize the system, they will go a long way toward continuing to improve it. They are very much in keeping with the improvements that have already been made.