We know that most civil cases are settled. However, that is likely true of clients with representation. In those cases, the client likely heard at mediation the message that our civil justice system is a gamble and is costly and that they would be better off to settle than proceed with their case. The likely outcome for represented parties is one that reinforces a lasting negative impression of civil litigation.
For unrepresented parties, the likely outcome is even worse. Many of their cases will be dismissed or otherwise disposed of because they do not understand procedurally how to move forward with their cases. Many will see their cases dismissed before the substance of their dispute has been heard. Others will simply give up in the face of the cost, time, and complexity of the system.
The first and last impression of litigants, represented or unrepresented, should matter greatly to us. People who no longer believe in the civil justice system will eventually turn to other means to resolve their disputes or will simply have their legal needs go unmet. If we are going to have the just society that we strive to achieve, the civil justice system has to be accessible, and we have to pay attention to those first and last impressions.
How to Fix the Problems
What can we do about this challenge?
First, it would help if we looked at our court systems and civil justice from the perspective of litigants as opposed to the perspective of the lawyers, judges, and court personnel who implement them. Businesses and organizations that thrive constantly evolve and keep their customers’ experience top of mind. Do we do that for civil justice? How often have we even thought about what it is like for an unrepresented individual to navigate the civil justice system? Some court systems make use of ombudsmen whose job it is to be there to help unrepresented parties navigate the system. All court systems should consider this approach.
Second, we need to take civil Gideon seriously. It has long been the policy of the American Bar Association to support a right to counsel in certain civil settings—among them, child custody and issues involving housing. There are just some civil cases for which representation of an attorney is required to do justice. Civil Gideon requires an investment of financial resources. That financial support will not happen without sustained leadership and lobbying from the organized bar, civic groups, and the bench.
Third, we need to consider whether our modern system of discovery acts as a barrier to the efficient resolution of matters with lower dollar amounts at issue. Discovery is the single largest cost in most civil cases. In many civil cases, the time and expense of discovery is disproportionate to the amount in dispute. Yet, for a variety of reasons, most attorneys will not rein in the amount of discovery taken to fit the needs of the case and the clients. I submit we need systemic change to force controls on discovery to permit more civil cases to be resolved in an efficient manner.
Fourth, we really need to think about how mediations are conducted and the way that clients are encouraged to resolve their disputes. Messages about the “gamble” of proceeding are counterproductive to leaving a positive last impression of our system. There has to be a better way.
Every day our civil justice system is making a presentation. Is that presentation a positive or negative experience? We could start by thinking about the first and last impressions of clients and unrepresented litigants and how they experience the civil justice system.