A call to action for civil justice reform

The following is by Linda Sandstrom Simard (Suffolk Law), who was a member of the Civil Justice Improvements Committee discussed in the post. These comments represent her own thoughts and opinions, not those of the Committee.

This summer the Conference of Chief Justices (“CCJ”), an association comprised of the chief justices of all of the state supreme courts, strongly endorsed the Call to Action and Recommendations of the Civil Justice Improvements Committee. Talk of civil justice reform is ubiquitous, but the CCJ endorsement of these Recommendations offers more than a glimmer of hope that key stakeholders in state courts around the country are ready to take serious action. The Report offers a comprehensive view of civil litigation in state courts and concludes that our legal system is too often not living up to the promise of a just, speedy, and inexpensive resolution of civil cases. The Report makes a series of evidence-based recommendations that seek to protect access to justice and restore faith in the civil justice system.  

Following is a brief description of the Report and my thoughts on the likelihood that the Report will engender reform.

In 2013, the CCJ established the Civil Justice Improvements Committee. The Committee, comprised of state court leaders from the bench, bar and academia, undertook two years of intensive deliberations, reviewing data from pilot projects around the country, implemented rule changes, empirical research, and stakeholder input. Based upon this research, the Committee found that: (1) over the last several decades there has been a dramatic rise in self represented litigants, with more 75% of civil cases involving at least one party who is self-represented; (2) high-value tort and commercial contract disputes comprise a small proportion of civil caseloads; (3) the vast majority of civil cases are debt collection, landlord/tenant, mortgage foreclosures, and small claims cases involving relatively modest monetary claims; (4) in many instances, the cost of litigating a case through trial exceeds the monetary value of the case; (5) the vast majority of civil cases are disposed of without adjudication on the merits; and (6) some litigants with meritorious claims and defenses are effectively denied access to justice because they cannot afford to engage in litigation, and those litigants with adequate resources frequently opt for private alternative dispute resolution. If action is not taken, these findings suggest that our civil justice system is in serious jeopardy.

The CJI Committee’s Recommendations are premised upon the notion that transsubstantive procedure, or “one size fits all,” is not a sustainable model for the future. Complex cases involving an abundance of disputed issues of law and fact require more procedure than streamlined cases involving few contested issues. The Committee’s Recommendations suggest that courts must manage civil cases by assigning each case to a case management pathway that provides the amount of judicial attention needed to resolve the disputed issues in a just, timely, and cost-effective manner. The responsibility for effective case management must be shouldered by the entire court staff, not just the trial judge, along with cooperative lawyers and parties. Innovative uses of technology are highly encouraged as a means to meet the enhanced demands of “right sized” case management. The Report makes special reference to recommendations that address the unique demands of cases that involve asymmetrical legal expertise. Overall, these Recommendations seek to restore faith in the civil justice system by reducing cost and enhancing fairness and efficiency.

I believe there is reason to be optimistic about these Recommendations. At its core, the CJI Report endorses the concept of proportionality.   Unlike the Federal Rules of Civil Procedure that require judges to make individualized determinations of proportionality for every discovery dispute, the CJI Report identifies procedural pathways that help courts to know which cases are likely to require substantial focused judicial attention and which cases are likely to need less judicial attention.  Since state civil case loads are much larger than their federal counterparts, this modified version of proportionality is pragmatic and efficient.   The Recommendations also recognize the need for flexibility in pathway assignments and encourage courts to reassign cases if presented with reasons why a pathway is inappropriate.   The fact that these Recommendations coincide with the tenor of the recent amendments to the Federal Rules of Civil Procedure suggests that momentum may be growing for significant civil justice reform to take hold.

Of course, this is not to say that change will be easy. Implementing the Recommendations will require substantial judicial resources. Court personnel will need training to meet the enhanced demands of case management, and judicial training programs will be necessary for newly appointed judges as well as experienced judges who may need to change deeply rooted habits. Structural changes may also need to be considered. For example, judicial rotations, short terms of office and frequent elections are likely to complicate case management efforts and hinder efficiency. Finally, cultural change will be crucial. Litigation strategies that rely upon expertise and judgment, as opposed to routine reliance upon boilerplate discovery requests or vague and meaningless discovery responses, will enable lawyers to resolve disputed issues of law and fact efficiently. If we can meet these challenges, I believe implementation of the CJI Recommendations will be a significant step forward for civil justice in this country.