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ABA committee says civil justice system is broken, offers roadmap for improvement

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ABA committee says civil justice system is broken, offers roadmap for improvement

By John Glynn

The civil courts, according to Texas Supreme Court Chief Justice Wallace B. Jefferson have been “taken over by institutional interests — the debt collectors and the landlords — and that has had a profound effect. It has taken over the docket and there is no room for the kinds of disputes that common people have.”

An expert panel presents “Achieving Civil Justice for All: Recommendations, Next Steps, and the Role of Bar Leaders” during the ABA Midyear Meeting.

That sentiment was echoed by Hannah Lieberman, an associated dean for the David A. Clarke School of Law, who said the system is in dire need of change because studies show that very little adjudication occurs in civil court cases. “These cases are rife with procedural problems that mean a lot of litigants never get a meaningful opportunity to be heard and where results are frequently contrary to the interest of justice,” Lieberman says.

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Jefferson and Lieberman were among four panelists who talked about the state of the civil justice system and why change is so crucial during a two-hour panel discussion “Achieving Civil Justice for All: Recommendations, Next Steps, and the Role of Bar Leaders,” on Thursday, Feb. 2 at the ABA Midyear Meeting in Miami. Joining them on the panel were Administrative Judge Jennifer D. Bailey, Circuit Civil Division in Miami; and Chief Justice Thomas A. Balmer of the Oregon Supreme Court. The panel was moderated by Don Bivens, a partner in the Phoenix office of Snell & Wilmer. The program was sponsored by the ABA Standing Committee on the American Judicial System.

The panelists were all involved to some degree in a two-year assessment of the civil justice system by the Civil Justice Improvements Committee that resulted in the committee producing a 13-recommendation report titled “Call to Action: Achieving Civil Justice for All” that was completed in July and presented to the Conference of Chief Justices.

The report looked at one million civil cases in the U.S. and the results were “surprising,” Balmer says. For starters, debt collection (39 percent), landlord/tenant (27 percent) and foreclosures (17 percent) dominated the case load of these courts. The takeaways from the survey of the landscape of civil litigation in state courts were that:

  • Tort cases have largely evaporated

  • In the vast majority of cases, the amount at stake is small (but still very important to the parties)

  • For most litigants, the costs of litigating greatly exceed the monetary value of the case ($4,000 median judgment)

  • Most cases are disposed through a non-adjudicative process, with jury trials at 0.1 percent

  • In 76 percent of cases, one or both parties are self-represented

“This landscape reinforced for me that we need to something for common people who don’t have access to lawyers but who have real-life problems that deserve recognition and resolution,” Jefferson says.

The CJI report attempts to address the issues of cost, delay and unpredictability of civil litigation and offers recommendations for improvements such as using technology to empower litigants and court staff, and rethinking longstanding policies and procedures for resolving civil cases.

The recommendations are:

  1. Courts must take responsibility for managing civil cases from time of filing to disposition.

  2. Beginning at the time each civil case is filed, courts must match resources with the needs of the case.

  3. Courts should use a mandatory pathway assignment system to achieve right-sized case management.

  4. Courts should implement a streamlined pathway for cases that present uncomplicated facts and legal issues and require minimal judicial intervention but close court supervision.

  5. Courts should implement a complex pathway for cases that present multiple legal and factual issues, involve many parties, or otherwise are likely to require close court supervision.

  6. Courts should implement a general pathway for cases whose characteristics do not justify assignment to either the streamlined or complex pathway.

  7. Courts should develop civil case management teams consisting of a responsible judge supported by appropriately trained staff.

  8. For right-size case management to become the norm, not the exception, courts must provide judges and court staff with training that specifically supports and empowers right-sized case management. Courts should partner with bar leaders to create programs that educate lawyers about the requirements of newly instituted case management practices.

  9. Courts should establish judicial assignment criteria that are objective, transparent and mindful of a judge’s experience in effective case management.

  10. Courts must take full advantage of technology to implement right-sized case management and achieve useful litigant-court interaction.

  11. Courts must devote special attention to high-volume civil dockets that are typically composed of cases involving consumer debt, landlord-tenant and other contract claims.

  12. Courts must manage uncontested cases to assure steady, timely progress toward resolution.

  13. Courts must take all necessary steps to increase convenience to litigants by simplifying the court-litigant interface and creating on-demand court assistance services.

“The reason we are doing this is because we need to make sure that we have a justice system that is serving the people or they are not going to support us anymore,” Balmer says. “They are doing so much online such as online dispute resolution. . . . So adopting these changes is really the future of the state judicial system and we need to respond to the public’s demand and make the system work in a way that the people are interested in and are willing to bring their cases to us.”

Baily says doing nothing is not an option. “We have to come up with a user interface that is better,” she says. “The public is not going to put up with this. If we expect to have any kind of market share of civil justice, we have to adapt the way we are working and do it in a way that is meaningful.”

How you can improve the civil justice system

Lawyers, judges and bar leaders are equal partners in helping to improve the civil court system and achieving civil justice for all as outlined in the report of the Civil Justice Improvement Committee. Here are some ways to support the Civil Justice Initiative:

For lawyers:

  • Create grassroots support by proposing case management plans that are not generic but tailored to the needs of the case and asking judges for case management orders.
  • Honor and comply with the dates in those orders, seek enforcement for noncompliance.
  • Conduct discovery tailored and proportionate to the issues in the case.
  • Support judges who actively case manage and speak out in support of case management.
  • Talk about these issues publicly and in social media.
  • Provide pro bono representation, including on “high-volume” cases.

For judges:

  • Take responsibility. Don’t wait for the friction of litigation to produce momentum and don’t rely on the parties to move your cases.
  • Start with a survey of what’s actually in your docket — either individually, as a division, as a jurisdiction or as a state.
  • Take a hard look at your traditional scheduling patterns and figure out if there is a better way to use judicial time more productively.
  • Hire staff with needed technology skills and train them in basic case management, so that judicial time can be used for judging instead of juggling.
  • Support opportunities for remote access for filing and appropriate hearings or other court activities.
  • Understand that no case is too small or too simple — every case deserves a timely result that is substantively accurate and timely, and take responsibility for your judgments even in “uncontested matters.”
  • Support in-court resources that provide legal information and advice to unrepresented litigants.
  • Adopt a process to ensure that unrepresented litigants understand the content and consequences of the papers they are signing.

For bar leaders:

  • Discuss and document the need for these reforms in your jurisdiction. Use data.
  • Gather stories and disseminate them through social media.
  • Support judges and court leaders in seeking necessary changes in culture.
  • Engage and support necessary rules and statutory changes to facilitate case management and effective and efficient resolution.
  • Assist and support court efforts to use new technology.
  • Educate and engage on the role of rule of law and the future of Civil Justice.
  • Work with the courts and legal service organizations to develop resources, processes and rules that provide increased assistance to unrepresented litigants.