It seems to me that the discussions about how to make courts work again have suffered from a problem of fragmentation.
While basically all courts operate under the same rules, based on the 1930’s Federal Rule project, there are now at least four separate discussions going on, dealing with the very different problems that this now very old system triggers for different groups.
Maybe if we at least recognize that fact, perhaps we can develop more focused as well as ultimately more comprehensive solutions. Perhaps the one thing the four areas of discussion have in common is that in none does the system work for the litigants — for whom it is supposedly designed. Moreover, even to the extent that the system is meant to serve broader goals of legitimization and conflict resolution, if it does not work for the litigants, it will not work for these broader goals, ultimately threatening the social contract.
The Self-Represented Litigant Issue
As a result of the legal profession pricing itself out of the market, there is a discussion triggered by the obvious crisis of millions of people forced to go to court in a system that assumes that everyone has a lawyer, without one. We have made lot of progress in innovations designed to address this problem, but we are still a long way from 100% access for this group. In order for the system to work, such litigants not only need tools, information, assistance and in certain instances a lawyer, but they also need a court management system that identifies when they need help, and gets it to them at that point, otherwise the system clogs up. The key point is that the litigants are not in charge, but at the mercy of the court to make the system work.
The Represented Case Delay Problem
For the once “typical,” but now in many courts now atypical, cases in which the parties have counsel, the discussion is about how to mange and control those cases to closure. There is wide debate about whether the caseflow management reforms of the last few decades need tweaking or replacing, but many agree that the attempt of courts to control their caseloads has failed. The problem, at least from a court management point of view comes from attorneys not being willing to move cases — particularly in the ever more complex, multiple player systems being build. The incentives on lawyers are not to speed cases, rather the reverse. Most importantly, again the clients are not in charge of the process.
The Corporate Conflict Problem
There has been lots of attention to the fact that rich, mainly corporate, litigants are buying out of the system in favor of private judging. They do so in part because the rigidity, delay and cost of the system. But they also do so because the clients really are in charge and the law firms have to give them what they want. The response of the courts has been to offer “Business Courts” creating the risk of perceived special treatment, perhaps undercutting, rather than strengthening the system as a whole. Here the clients are taking charge by bailing out of the system
The Corporation Versus the Self-Represented Group
In this group, the courts should exist to act as a countervailing force to the power control and information possessed by the corporation. The history of the foreclosure and credit debt crises shows how rarely they have played this role. Attempts to require plaintiffs to attest to the underlying information have helped reassert the right balance, but the process has only just begun, and much remains to be done. Here the system puts one class in near complete charge.
I hope to blog more about the implications of these distinctions, hopefully with a focus on an integrated approach. I will say this now: I am even more convinced than before that it is time to rethink the whole approach of the current rules. Too much has changed.