Civil litigation costs too much. Also, the process often takes far too long. Continuances, unresolved motions and changes in judges protract the case. The jury trial is not just vanishing — it has all but vanished. Instead, cases settle — frequently on the basis of how much it would cost to continue litigating, not on the basis of the facts and the law applicable to the case. Increasing numbers of litigants have no access to the system at all, because the ante is too high.
Discovery is the name of the game — not trial. And discovery has become not only the “name” of the game, but a game in and of itself. It is used and abused — by both sides of a case — to increase costs and cause delay and inconvenience, all with a view toward leveraging settlement.
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