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Ms. Prescott has identified several issues that touch on “access to justice” challenges in our civil justice system. While traditional civil law “access to justice” discourse has focused on helping the unrepresented or self-represented, Ms. Prescott focuses on less obvious barriers that remain—even when counsel is available. All lawyers and judges should be concerned about such barriers because they pose a risk to the legitimacy of our legal system.
As legal insiders, judges are prone to think about judicial legitimacy in terms of how judges should comport themselves before an audience of lawyers, court watchers, and other judges. Our legal system depends on continually persuading people that their right to a day in court is not mere rhetoric. Every time a legal outcome is determined by factors extrinsic to the ideal of law applied to merits, we add a justifiably embittered person to the class of skeptics and nonbelievers. While courtroom interactions are incredibly important, I also suggest—emphatically—that judges have an urgent duty to craft 21st-century solutions to access-to-justice issues.
There is no doubt that justice delayed is access to justice denied. Like Ms. Prescott, prior to my joining the bench, I experienced the frustration of cases delayed for months or even years due to undecided motions. We all know that timely resolution of pending motions both narrows key legal issues for trial and allows parties to better evaluate the costs and benefits of litigation. How is an attorney supposed to explain that she has done all the work for her client, filed (or responded to) motions, and after two years no decision has been made? I have witnessed firsthand parties subject to such delays and their conclusion that the legal system is simply broken. Ms. Prescott rightly points out that delay can result in a party with a meritorious claim walking away with nothing more than a financial and emotional insult to add to a legal injury.
What can be done to address this problem? First, data collection is absolutely necessary for diagnosing the sources of delay, which, like viruses, can emerge and mutate rapidly. Without data, the problem may seem chaotic or, worse, be attributed to inaccurate causes (e.g., too many cases or too much discovery). Perhaps one judge is backed up due to a complicated trial; perhaps another due to illness or staffing challenges. Likewise, the solutions may not be deducible from intuitive reasoning alone. Perhaps one court is efficient thanks to an excellent staff person, who can become an exemplar for training across the entire system. Simply put, relevant, detailed, and transparent data show us where to look for the problems and their solutions. While data are already gathered in our federal courts, leaders in all of our courts across the country must ensure the data are collected and accessible and can be used to actually solve problems.
At first glance, one might see a tension between Ms. Prescott’s call for faster adjudication and her discovery recommendations. More discovery can mean more time spent on a matter. Supplementing the formula that has dominated discourse on administrative reform since the 1980s would be a good place to start. The formula has been as follows: # of cases * (scope of discovery) = load on courts. See Arthur R. Miller, The Pretrial Rush to Judgment, 78 N.Y.U. L. Rev. 982, 996–1003 (2003) (discussing various late-20th-century reform efforts aimed at combating a perceived “litigation explosion”). The formula is intuitive and correct to some extent, but it is imprecise. The burden of discovery scales not only with the amount of information to be moved but also with the efforts to move it.
Our system cannot only be concerned with precluding unnecessary discovery; it is equally important to fast-track necessary and inevitable disclosures. Ms. Prescott’s focus on information asymmetries draws attention to that ideal. Data yet again can provide solutions. See Linda Sandstrom Simard, Seeking Proportional Discovery: The Beginning of the End of Procedural Uniformity in Civil Rules, 71 Vand. L. Rev. 1919, 1940 (2018) (“Historical data will illustrate when certain case characteristics . . . pose a risk for disproportional discovery and support the development of techniques to avoid or defuse a problem before it materializes.”). When subsequently using such data to inform changes, key stakeholders representing all sides must of course be at the table. Courts can promulgate and enforce more context-specific initial disclosure rules, as Michigan has done for auto accident and personal injury cases. See Mich. Ct. Rule 2.302(A)(2) & (3).
In Michigan, our Justice for All Commission, comprising a wide cross section of stakeholders, has a technology and data-sharing work group that is studying data gathering in our civil system. While the work is not easy, given vastly decentralized sources from which data must be collected, the commission recognizes that data should inform every recommendation for ensuring a better-functioning court system. As our nation recovers from a pandemic, our trial courts have an opportunity to innovate and manage backlogs in a manner that creates a higher-functioning system for everyone.