Looking at excessive litigation costs and time delays as techniques in themselves by which a party can force settlement is a distortion of what the civil justice system is intended to be.

Some time ago, the Law Tribune Editorial Board addressed the question of civil litigation reform; of the need to reduce the costs and delays that plague the administration of Connecticut’s civil justice system; of the need fully to re-open the courts to the public; and of the need for disputes to be resolved on the merits of their causes rather than as a byproduct of the frustration created by the system’s administrative flaws. We do not mean to imply that this is a problem that has been ignored. Most sectors of the bar and judiciary recognize the need for reform. Efforts have been and are being made to address the concerns that were raised.

The Federal Rules Committee has proposed several changes to federal procedure that should help alleviate the expenses incurred in discovery. Limiting the parties to 15 interrogatories and five fact depositions of six hours each is a start. While some efforts have been made to try and rein in the electronically-stored-information Frankenstein, these revisions carry less promise. At the state level, Connecticut’s courts seem to be moving toward adopting the federal procedure of assigning each case to a single judge to manage from inception through trial. Perhaps the state will consider abandoning fact pleading with its time-consuming and cumbersome parade of needless pleadings and procedural motions and maybe it will consider adopting the proposed federal discovery limitations.

Whatever actions the courts take to reduce the cost burdens and time delays that have become a sorry part of both state and federal court practice will be welcome, but to be successful they will require judicial buy-in and enforcement. There are several other ideas that might be considered as well, but first a more fundamental point needs to be addressed.

The previous editorial has led to a discussion of whether limiting discovery and motion practice would inhibit case settlement. Indeed, it has been suggested that such limitations would have just such an impact; and that as such they might be objectionable. It is difficult to understand the point being made. To the degree that litigation expense and delay have become so much a part of our system that they form a tactical platform for reaching settlement, it is true that the type of reforms advocated will reduce settlement opportunities. So be it.

Looking at excessive litigation costs and time delays as techniques in themselves by which a party can force settlement is a distortion of what the civil justice system is intended to be. In the ideal, our system is designed to resolve disputes on the merits of a case, either by settlement upon the parties’ recognizing the strength and weaknesses of their positions or by a trial of their cause through presentation to an impartial court or jury. Any aspect of the justice system that causes deviation from this ideal should be regretted; it should be minimized to the extent possible. If the absence of a cost-bloated litigation process results in decisions to try or settle cases being based on the merits of the claims; that would be a positive good. In that event, the public, whose interests we are sworn to serve, will not so justifiably feel cheated.

Second, the point has been raised that limiting discovery may cause proverbial “silver bullet” evidence to go unseen and unused. There are two responses to this point. The most obvious is the fact that the search for such “silver bullets” is very much like the search for perpetual motion machines and alchemist’s gold. “Silver bullets” are generally imaginary; almost never, if ever, found in the real world no matter how many depositions are taken, how many interrogatories are sent off or how many thousands of documents are produced. More importantly, it is time to face the fact that more is being lost in terms of the fair administration of justice by the dragging on of senselessly expensive litigations than will ever be gained by that search for a killer piece of evidence, even if one assumes that it might exist. The “silver bullet” argument is a classic case of missing the forest for the trees. Of course, any discovery limitations could and should provide an avenue for litigants to request a release from any discovery restrictions on motion for “good cause shown” in cases that might merit or even demand more such investigation.

The simple fact is that the system of civil justice is fast approaching a crisis of functionality and loss of public confidence that may very well threaten the very integrity that has allowed it to perform miracles of peaceful social and economic reform during the course of our Republic’s history. From major changes like that wrought by Brown v. Board of Education to smaller, more incremental, long-range alterations to the national fabric, as evidenced by judicial development of the Sherman Act, the civil justice system has been a major, if not indeed the major, engine of non-violent change that has permitted our country to weather the ebbs and flows of the radical, often destructive, political and moral philosophies that have infected so many other peoples over the last two hundred years. The heart of this achievement has been our public consensus that the law is to be respected above the individual’s personal wants and preferences and a cornerstone of that consensus is a belief that the civil justice system hears and fairly adjudicates questions brought before it. In today’s environment of instant mass information and misinformation, of talking heads and political pundits, it is ever more important that the civil justice system be focused on insuring that the merits of a dispute are addressed in a timely and economic fashion, whether by reasoned compromise or through the decision of judge and jury. They must not be resolved because one party or the other simply cannot afford to see the case through. This is why comprehensive and systemic reforms are needed now.