My friend Becky Kourlis recently wrote, “Lawyers and judges may have been the last to know, or maybe just the last to admit the truth. The American public is fed up with the civil justice system. It costs too much, is convoluted and agonizingly slow. In the end, it seems to be all about putting both parties in a posture where anything is better than forging ahead, and they settle — often with little attention to the facts or the law, but rather on the basis of who blinks first. The parties who can afford it often escape into alternative dispute resolution systems where they can control the pace and, to some extent, the process. The civil jury trial is all but gone, and the development of appellate case law arising out of trial court decisions in civil cases is waning. In short, the American civil justice system — the bulwark of our social contract with one another that protects individuals, enforces constitutional rights and contracts — is in trouble. But, there is hope.”
I met Becky shortly after she resigned from the Colorado Supreme Court in a quest to establish an action-oriented think-tank devoted to reform of the American legal system (an admittedly daunting task). IAALS under Becky’s leadership has been spectacularly successful in addressing issues of system change in our nation’s state and federal courts. IAALS has issued a new publication Reforming Our Civil Justice System: A Report on Progress and Promise. The report calls for a sharp realignment of the discovery process and greater court resources to manage cases.
• The “one size fits all” approach to trying cases is not optimal; the process appropriate for one case is not necessarily the process appropriate for another case. Both court rules and judicial case management strategies should reflect that reality.
• Effective case management by judges is critical to each case, ultimately saving the parties time and money, and leading to more informed and reasonable resolutions. Management should be tailored to the needs of the case.
• To accomplish this greater involvement by judges, courts need more resources. Where judicial resources are in short supply, those resources should be increased to allow courts and judges to work more efficiently and effectively.
• Proportionality is reaffirmed to be a guiding principle for all discovery. This is a consistent theme across the country and a significant aspect of the proposed amendments to the federal rules of civil procedure.
Many of the ideas in this report are common practices in our states. But before we become too self-righteous, we owe it to the litigants to recommit to not just being good, but being the best at what we do. To again quote Becky, “Great changes are underway already in some places, but our legal system and profession must unite around principles that can be extended nationwide, so that every court—and every litigant—will benefit.”