The Huge, Obvious Problem with the Law

There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it's not there. It's so large as to be beyond overwhelming.

The problem is this: Our system of justice is absurdly complex and time consuming.

A mighty swamp is our law.
(Image: Nat'l Park Service)

I know - it's not news. But that's the rub. The shadow cast by this cloud is so vast that our eyes adjust to the darkness. Several aspects of the Big Problem are shocking to 1Ls and stub-year associates. But eventually, we all become desensitized. Nonetheless, the legal profession ought to take a hard look at the ugliness. If we cared to do something about it, I think we could.

There are three basic aspects to the mess: Endeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive.

Why is this so? The basic features of our courts, our procedural law, and our means of recording and organizing substantive law were designed in an era of quill and parchment. And the biggest changes since then arose in an era of typewriters - before there were photocopiers, even. Since that time, an explosion in population, technology, and wealth has overwhelmed the law's operating system. It's like trying to run new, bulky software on a really old computer. It's slow as heck.

To appreciate the absurdity of the burden we've imposed upon ourselves, it's helpful to get some context. Let's compare civil litigation to health care. A medical problem costs nearly the same amount to treat for a rich person as it does for a poor person. Sure, there are always more tests you can run, wallet willing. But in health care, the key variable is the disease.

That's not true at all for civil litigation. The key variable in a lawsuit is the amount of money at stake. The exact same ambiguous contractual language could cost mere hundreds of dollars to litigate or well into the tens of millions. If you think about it, that's crazy. The cost of a civil dispute scales directly with the dollar amount on the line. That's why plaintiffs' lawyers can sensibly charge straight percentages of a contingent recovery. The mathematical relation is bankably certain.

Sadly, to the extent anyone has tried a real game-changer here, it has been binding arbitration. Instead of trying to fix our courts, whole sectors of industry are just doing without. And that turns out to be very undesirable for a lot of reasons - at least in my opinion, and I know many agree. With arbitration, particularly when it comes to consumers, convenience is often obtained at the price of fairness.

For all the codes and rules and hortatory language of “professional responsibility,” our profession ought to take responsibility for the law as a whole - and the mighty swamp we've made of it.