Civil Justice Playbook: Courts As Last Resort

Wednesday, January 6, 2016 - 01:36

Here’s an interesting thought exercise courtesy of Rebecca Love Kourlis, the former justice of the Colorado Supreme Court whose Denver-based Institute for the Advancement of the American Legal System (IAALS) has for 10 years been working to rebuild the civil justice system. (Kourlis credits the exercise to Mary Campbell McQueen, president of the National Center for State Courts.)  

Imagine a lawyer, judge or other participant in the 19th Century civil-justice system magically transported from a courthouse in 1850 to a courthouse today. Chances are they would know, more or less, what to do. Now, imagine a doctor, nurse or other participant in the 19th Century health-care system plucked from a hospital in 1850 to a hospital today. Chances are they would be, more or less, at sea.  

Such is the state of civil justice today. At a time when technology is profoundly transforming our institutions and interactions, our courts, particularly our state systems, are mired in the 19th Century. 

We last checked in with Kourlis in April to discuss IAALS’s work to make the “just, speedy and inexpensive” determination of all civil justice proceedings a reality. Kourlis is heartened by the changes to the federal rules that took effect on December 1, but she is focused on a bigger picture and is eager to provide some context. 

“There is a national movement to make the courts more efficient, navigable and affordable,” she says. “The customers are demanding it. They are choosing to go elsewhere when they have a choice.”

Running alongside the changes to the federal rules is a similar movement in the state courts led by the Civil Justice Improvements Committee of the Conference of Chief Justices. The committee, convened in 2013 to assess the effectiveness of various reform projects instituted by state court systems, is expected to make recommendations to the chiefs for best practices as soon as this summer.

Informing the committee’s work are two documents recently released by the National Center for State Courts: a study called “The Landscape of Civil Litigation in the State Courts,” and a national survey of registered voters called “The State of State Courts.” IAALS’s Rule One Initiative, led by its director, Brittany K.T. Kauffman, who assisted on the NCSC study, also has weighed in with its own report, “Change the Culture, Change the System: Top 10 Cultural Shifts Needed to Create the Courts of Tomorrow.” 

According to Kauffman, the reforms embodied by the changes to the federal rules, and those expected from the Conference of Chief Justices, are just the start. “It took much hard work to get this far, but achieving the full impact of these recommendations and reforms ultimately comes down to implementation,” she says. “Rules alone are not enough. And while case management is critical as well, we cannot rest this effort on the shoulders of the courts and our judges alone.” 

What’s needed, Kourlis says, is major cultural change. “It is the responsibility of the courts, lawyers and litigants to move the case along based on that case’s needs,” says Kourlis. “That is the drumbeat we sense moving through all of these reform efforts: judges and lawyers stepping up to the plate.”

If there is any doubt that a 19th Century system in a 21st Century world merits attention, the NCSC landscape study and voter survey should lay it to rest. Both manage to be shocking without being surprising. Think of someone who, despite an alarming cholesterol count, continues to gorge on fried and fatty foods and then is shocked, to nobody’s surprise, by a heart attack. As this study shows, our state courts are clogged with the civil justice equivalent of cholesterol – millions and millions of contract, debt collection, landlord/tenant and small claims cases with modest amounts at stake. Three of four judgments were less than $5,000, and three of four cases saw at least one party self-represented – almost always the defendant.

Not exactly the picture of civil litigation we often see in the media or from critics of our system who tend to rail about high-stakes tort and commercial disputes. Consider this: of almost one million cases studied, just 165 had a judgment of more than $1 million. It is a system where trials are rare, precedent is thin, the odds are stacked, and the alternatives are few.

“Most of the litigants who have the resources and legal sophistication to do so have already abandoned the civil justice system either preemptively through contract provisions . . . or after filing a case in court through private ADR services,” the report says. 

That leaves the sludge clogging the arteries of the courts. Not that the cases are not important to the litigants. Of course they are. But for the most part they are getting kicked down the road by judges and plaintiffs’ lawyers as defendants stand haplessly by. 

“State courts are the preferred forum for plaintiffs in these cases for the simple reason that in most jurisdictions state courts hold a monopoly on procedures to enforce judgments,” says the report, noting that even defendants with the wherewithal to hire counsel would be foolish to do so when the cost of representation exceeds the potential judgment. “The idealized picture of an adversarial system in which both parties are represented by competent attorneys who can assert all legitimate claims and defenses is an illusion.” 

Another worrisome byproduct of this system is revealed in NCSC’s national survey, which shows a “disturbingly pervasive belief in an unequal justice system that systematically produces different results base on race, income, and other socio-economic factors.” And while the courts remain the most trusted branch of government, that masks a “massive racial gap . . . with Africa Americans much more distrustful of the courts and the broader justice system.” 

The good news is that Americans see a path forward. They have faith that technology can help save the courts by improving communication and service while heightening efficiency and lowering costs. It’s a theme IAALS embraces with gusto. 

Kourlis, who attended Stanford, wants a healthy dose of Silicon Valley injected into the courts. “It’s what I call my ‘app thinking.’ Courts should have litigant portals, apps that push out notices, pop-up navigators, and generally a more interactive process,” she says. “For litigants, going to court should not just be about showing up and having something done to them. To meet the needs of the people, the courts need to become user-centric.” 

That means embarking on the hard work of broad-based cultural change. “We let it happen,” Kourlis wrote recently in an IAALS blog. “And now we can reverse course.” 

The alternative is unsavory. Kourlis points to the NASC survey, which shows that the state courts are now viewed by a majority of Americans as a last resort for resolving disputes. Even more alarming, she says, those with direct experience with the state courts are more likely to see them as a last resort. 

Talk about a sorry state of affairs. When it comes to the state courts, it seems, to know them is not to love them.