Any discussions about reforming the state of our legal system must necessarily include our system of civil justice. The civil justice system exists not to keep society safe from physical harm, but rather to allow individuals a place for solving disputes that do not rise to the level of criminal behavior, whether they involve private citizens, businesses, or the government. But the fact that civil matters do not usually involve direct or immediate threats to the safety of society does not mean that they are of less importance in maintaining a functioning society. Civil justice concerns deserve to be resolved in just as timely a manner as criminal justice concerns and with the same basic tenets of Common Sense.
Unfortunately, in our legal system today, civil matters often fall to the wayside when it comes to getting their fair day in court. Because our criminal courts and civil courts are combined, and because criminal matters are tantamount to keeping society safe from abhorrent activities, civil matters often get pushed to the end of the line when it comes to getting them resolved in the court system. The result is a multi-year process for resolving civil complaints, driving up the costs for individuals and delaying disposition of the matter at hand. This frustration can lead to individuals taking matters into their own hands, creating the potential for civil matters to turn into criminal matters. This is a cycle that has to come to an end.
Just to be clear, when I refer to “civil justice,” I am talking about things like contract law, property disputes, product liability, family issues, community ordinances, building codes, malpractice, and other activities not specifically covered by misdemeanor or felony criminal codes. These are the kinds of legal issues that ordinary people deal with when they encounter the court system. But because of the structure of our civil court system, individuals that attempt to right a wrong against them are faced with an astounding challenge, both financially and legally. Our civil codes are filled with nuances of procedure that enable lawyers and large, financially secure corporations to draw out the process and essentially bleed an individuals ability to gain justice by driving up costs. This creates an inequity in the system that is supposed to be available to all citizens. Further, the number of questionable legal suits brought into the system by citizens and businesses needlessly clog the courts, creating a backlog too large to get through in a timely manner. Justice should be fair and efficient, or it is hardly just at all.
So what can be done to make our civil justice system more responsive to the needs of society? The first step would be to establish two layers of civil justice: one layer that deals with disputes between individuals only, and another that handles any disputes involving businesses and government. The need for this is simple; individual disputes are often less complicated to resolve, and therefore don’t require all of the accoutrements of a full-blown legal trial. Rather than be held hostage to expensive attorney fees, overbooked court calendars, and endless delays, personal civil disputes could be remanded to binding mediation, similar to what is available in many areas today, but with a few changes.
This type of mediation would be required for any disputes that could result a possible financial reward under a defined dollar amount or to resolve other, non-financial problems. A three-member panel of ordinary citizens who serve in that capacity for a defined length of time, and then are rotated out and replaced (similar to convening a jury pool) would hear disputes. Each party would represent themselves at mediation and agree to be bound by the panel’s decision. Panels could be established based on population numbers so that there would be plenty available to handle disputes in a timely manner. This would allow for all citizens to have access to mediation for minor civil disputes without having to pay high court costs, filing fees, attorney fees, or having to wait for an extended amount of time for redress. Decisions would be final, eliminating endless appeals and allowing people to move on with their lives.
In addition to speeding up the process for resolving minor disputes between individuals, binding, mandatory mediation would result in lower overall costs associated with the legal system, and greater participation of the citizenry in the legal process, furthering each persons understanding of the necessity of involvement with societal needs.
For civil matters involving businesses, government, or for individual disputes with a higher potential financial reward, civil courts should be established that are independent of the criminal court system. This is necessary to increase the speed with which these kinds of disputes can be resolved and thus avoid the high costs associated with these types of trials. Like the criminal court system, civil courts can be established at the state and national levels, housed in the same buildings, and sharing the same procedural guidelines. The state courts would be responsible for solving disputes between parties residing in the same state, while the national courts would work on matters that involve parties from different states. A national set of procedures and rules would govern how the courts would operate.
In order for this type of division to work, national civil codes would have to be enacted, similar in nature to the national criminal code, so that every citizen, business, or government entity would understand what kind of conduct was acceptable and what would likely result in being brought to court. Unlike our current cadre of civil codes, these would not vary from state to state, but would be consistent throughout the country, except in cases where geographical concerns dictated slightly different policies, with similar restrictions regarding what constitutes illegal civil conduct. Further, appropriate guidelines for jury awards should be developed to put an end to outrageous awards that tend to get passed on to the public through higher costs. Finally, any type of pre-trial settlements involving product liability, malpractice, or governmental misbehavior should be made public to prevent the same actions from occurring over and over again. Privately made back room deals should not be allowed, preventing non-disclosure contracts that keep the public from being aware of potential problems resulting from poorly made products or policies.
While it has become commonly accepted that the only way to get someone’s attention is by hitting them in the bank account, civil justice should not be viewed as some sort of lottery pool, whereby individuals can strike it rich by claiming damages or concocting dubious claims. Verifiable economic damages should be shown before awards are handed out. Potential economic damages should be based on statistical averages based on the harm done and the loss of potential economic earnings, if appropriate. Intangible damages should be handled in other ways if possible. More importantly, parties on the losing end of civil trials should be made to rectify their errors by correcting the problems that led to the court action. They should be held accountable for repairing and replacing the faulty products, rewriting poorly thought out policy, or standing by their written contractual agreements.
The final piece of the puzzle concerns the legal profession itself. Rather than act as public servants, lawyers have gotten a negative reputation by reaping in more than they recover for their clients and by elongating the legal processes in order to drive up billable hours. The whole point of having legal representation is so that individuals don’t have to learn all the fine points of law in order to stand up for themselves. Simplifying the codes would go a long way in eliminating this problem, but so would limiting the amount of a winning party’s award that a lawyer could claim. This is not to say that attorneys should work for free, but as an integral part of the justice system, they have a duty to advocate for the individual more than they have a right to get rich.
The integrity of the justice system depends on its opacity and its ability to produce equal justice for all parties involved. It should operate on the least amount of money possible while maintaining its integrity as a bastion of truth and honor. In any democracy, the rule of law is one of the pillars of strength by which that democracy will stand or fall. If society can’t look to its justice system and feel confident that anyone, at anytime, can find recourse within it, then it is a broken system and could lead to eventual mayhem. We are edging ever closer to a system that is jaded and increasingly viewed with suspicion. This is not justice at all.
This entry was posted on Friday, February 4th, 2005 at 6:48 am and is filed under Crime, Government, Justice, Reform.
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February 4th, 2005 at 2:56 pm
As somebody who works for a company that has been hits by billions of dollars in lawsuits (many frivolous) and the son of dcotor who has been sued for malpractice twice (mainly becasue he works in a area that serves porrer patients) I have to say agree with you.
February 4th, 2005 at 7:09 pm
Interesting but so very topical that it begs comment.
First of all, the criminal courts and civil courts are separate. There are not lines of criminal defendants interspersed with civil plaintiffs who are then required to step aside so the speedy trial guarantee of the constitution is met. Speaking of the constitution, it is the source of the rules we apply to criminal trials. It guarantees certain things, which do seem preferential because they are. We prefer to allow the criminal defendant rights that we do not allow the civil plaintiff or defendant because the criminal is in jeopardy of his life and freedom. The mere fact that things go along more quickly for the criminal defendant is not a sufficient reason to call the civil system defective.
Furthermore, how do you suggest we pay for all these new courts that you propose? The buildings, employees, etc. are not free. The main reason that calendars are backlogged is a lack of money to administrate any faster than we do. Double the number of superior court judges and bingo! Things will speed right up. But someone has to pay for that.
Your suggestion that we “simplify” our laws is simply ridiculous. The result of simplification would be MORE litigation, not less. The complexity of the rules serves the very important purpose of narrowing what the civil plaintiff can and can not do. It protects the integrity of the system. To mitigate those benefits for the questionable purpose of “Lay persons ease of understanding” is just as silly as changing the way we build airplanes cause most people don’t “get it”. Consider small claims court for those that want to vindicate themselves with out the assistance of an attorney. Or, better yet, educate yourself and then forgo that attorney. Everyone has the absolute right to represent his or her own interests with out assistance of counsel.
And lastly, sufficient proof and exacting calculations of damage awards is already required. The various types of damages recoverable in civil actions are very well defined and the rules for their calculation are rational and clear. Any result that does not appear to be rational is either not properly understood (most likely) OR is a rare anomaly.
Take the time to understand thep resent system before you deride it.
February 5th, 2005 at 7:22 am
(reply to Girl Ipsa)
From your e-mail address, I have to conclude that your are either an attorney, a student studying to be an attorney, or otherwise intimately involved with the current legal system, so I can understand better your defense of the system. That helps to understand your point of view.
I will readily admit that my perception of the legal system is based more on my limited experience and the experiences of others with whom I have talked, and with what I have read and seen in various media circles. But as with most things, perception is an important aspect in being able to asses a situation, and often the only way for outsiders to offer suggestions for reform. Those caveats aside, I will reply to your comments.
When I imply that the systems are intertwined, causing a backlog in scheduling, it is because we seem to have both types of legal concerns (criminal and civil) being tried in the same court buildings, with the same court staffs. I readily agree that criminal defendants deserve to have their right to a speedy trial, but so too do non-criminal cases. Civil cases DO span years before resolutions, and I think that it is inexcusable. Is that because they don’t have a separate court apparatus to work within? Or do we, as society, just deem them to be less important in the broader picture? The fact that civil trials take so long IS sufficient reason to vocalize concerns with procedure, and DOES lead to a perception of deficiency.
Secondly, regarding the costs associated with creating and running a completely separate civil system: these could be accomodated by the cost savings I allude to in several of my earlier posts, as well as though the posts that are yet to come. A streamlined legal system will save money in many areas, such as the citizen run “small claims” system that I propose in this essay, and those moneys can be used to facilitate more efficient systems that I feel would make the system better.
As for simplifying the rules of the system being “ridiculous,” I would have to disagree with your assessment that complex rules are needed in order to reduce litigation. In reality, the more complex rules only serve to ensure that more lawyers are necessary to enable anything to pass through the system at all. Since when did making things more complex make things more fair? Usually, the more complex things become, the more loopholes can be found and exploited, necessitating even more rules and regulations. It becomes a self-perpetuating cycle. Your analogy to a laypersons knowledge of airplane mechanics is not very effective simply because knowledge of airplanes is not needed to establish your rights and assert yourself without having to spend an arm and a leg. When citizens are unable to understand the legal options and issues of their complaints without the benefit of expensive legal counsel, they wind up at the mercy of unscrupulous attorneys and uncaring courts, that seemingly care more about protecting their “turf” and collecting their fees than they do about ensuring justice is available to all.
As for your assertion regarding the rules established in awarding damages, you may well be correct. I can admit when I am standing on a limb to make a point. Perhaps you could explain then how ones own carelessness or ineptitude can entitle you to getting someone else’s money? I know that the media usually reports on only the exorbitant jury awards, but what about all of the smaller awards amounting to tens of thousands of dollars for what is commonly referred to as “mental pain and suffering” when the only physical damage an individual received takes the form of hurt feelings, or insecurity? For every actual case of physical injury, there seem to be dozens related to mental damages. The victimization of society has all but put an end to personal responsibility, self-reliance, and common sense.
I may not take the time to research every minute point before I comment on it, but I am pretty sure if I did I could find plenty of cases to back up what I am implying.
I respect your opinions, even if they do come from a somewhat biased standpoint, but if society is just to abandon good judgement in an effort to protect unnecessary regulations and overbloated professions, then we might as well throw in the towel right now, cover our heads up, and wait for everything to fall apart.
February 5th, 2005 at 2:40 pm
“Our civil codes are filled with nuances of procedure that enable lawyers and large, financially secure corporations to draw out the process and essentially bleed an individuals ability to gain justice by driving up costs.”
Ah, but this is one of the benefits you receive for being wealthy. Take that away, and what incentive has man to better himself? A life of leisure? Not enough, my friend; man works only so that he may one day lord it over his inferiors, or so the plunderbunds would have us believe.
February 6th, 2005 at 12:21 am
I’m outta my league on this one, but I still think you’ve got some great ideas. I’m looking forward to more of them.
Nice defense of your positions, especially regarding the simplification of the laws. Complexity only demands more “expertise”.
February 6th, 2005 at 7:14 am
(responses)
Irate~
Thanks for helping to clarify the point I was trying to make regarding the superiority complex associated with those fortunate enough to enjoy the resources to string the little man along. For while they toil at making themselves self-important at the expense of ordinary citizens, the rest of us endeavor to get a leg up in the world, not through trouncing those among us, but by seeking to better ourselves and by standing on our own two feet.
M+ ~
Never feel out of your league. A lack of understanding is often created by the ability of others to make complex that which should not and does not need to be. Rather, insist on making those who would muddy the waters scrape the scum from the surface so as to expose their biases and try to defend undefensible positions. Then throw some common sense their way and watch them try to squirm away. This is the surest way to know that you must be on to something.
February 6th, 2005 at 7:27 am
I like cheese. Maybe you should write an article about cheese.
February 8th, 2005 at 6:06 pm
I am glad that you admitted you are out of your depth on jury awards. Perhaps you are also out of your depth on the other issues as well?
The courts are NOT combined. At least not in our neck of the woods. Perhaps you can find a backwater town with a constable/judge/justice of the peace and a one-room court system to deal with spitting in public and “feuds”. But I doubt it.
As for your assertion that you’re sure you can find cases that back up your claims — I say go ahead! Lets discuss a specific case where the jury award was unacceptable to you. I venture that the result of looking closely will be to discover that the “unfairness” was corrected on an appellate level OR that you misapprehend the nature of the entire proceeding. Either way, dealing in facts tends to insure that we are not just making up arguments to support our point of view.
I am not biased in favor of a bloated court system. I am biased in favor of reasonable examination of ACTUAL fact. To posit a false premise and then argue against it serves no useful purpose. Analysis based on falsity is a failure of epistemology.
February 8th, 2005 at 7:56 pm
(reply to Girl Ipsa…again)
Interesting how you came away from my earlier response clinging to my note regarding my lack of research regarding jury awards and from that can argue that I am “out of my depth” on everything else as well. I’m not really surprised though. So, I will address this point again.
As stated before, the PERCEPTION of a bloated system is equally important in its effectiveness for the average citizen. Whether or not jury awards are reduced at the appellate level does little to change the fact that headlines screaming about multi-million dollar awards create a viewpoint that our legal system is just another way to get rich quick. Does this mean that our media needs to do a better, more responsible job of reporting the realities? Of course, but that is for another essay.
As for some of my other points discussed…
After carefully checking into the court structure of several different states, I found (not too surprisingly) that Superior, District, and County courts ALL HAVE THE AUTHORITY TO HEAR BOTH CRIMINAL AND CIVIL CASES, and do so. That does not sound like a separation of systems as I talked about. Rather, this is the combined system which I implied creates a backlog for civil cases to be resolved. In fact, the U.S. Dept. of Justice studies of the 75 largest county state courts notes that the average time from filing a claim to jury verdicts is 2.5 years. But I guess I was out of my depth when I made the assertion that the length of time it takes to resolve civil cases is too long.
As for the guidelines regarding jury awards for damages, perhaps you could refer to a book called “Punitive Damages: How Juries Decide” by 2002 Nobel Prize winner Daniel Kahneman which took grat pains to study how our system is flawed when it comes to asking juries to bestow monetary justice. This book posits, among other things, the notion that judges should be responsible for deciding the awards rather than juries, based upon their greater experience in such matters. He likens our current system to that of allowing an 8 year old to get a drivers license and then punishing him when he wrecks the car.
Rather than defend a flawed system that clearly needs some revamping, you could take a step back and look at the problems, both actual and perceptual that abound, and come up with some suggestions of your own instead of attacking others who are just looking to insert some common sense.
Thanks for stopping by.