Editor: Phil, I gather that you feel that some of our court systems are seriously underfunded and that the litigation process is suffering in certain ways as a result.
Sellinger: Underfunding inevitably leads to more crowded dockets, which means that judges today often cannot devote as much time as they would like to a particular matter. Federal court judges, for example, hear fewer oral arguments than they used to. Similarly, state court judges are sometimes unable to give a complex business case the personal focus they would otherwise give it, and that can cause a case to languish. That's something no judge wants to have happen. It's just an unfortunate side effect of court underfunding.
Editor: We know that only about two percent of cases filed by Fortune 500 companies ever make it to trial. Does that statistic indicate that underfunding leads to settlements?
Sellinger: That statistic for Fortune 500 companies is not much different from cases filed in the United States generally. The two most important factors that parties generally consider when deciding whether to settle a case or proceed to trial are uncertainty of results and the cost of litigation. While it's probably fair to say that underfunding exacerbates both of those factors, underfunding is itself not the driving factor in most cases. Uncertainty usually arises out of the unique circumstances of the particular case.
Editor: Given clogged dockets, how can overworked state court judges handle every aspect of a very complex case?
Sellinger: The short answer is, they can't. Discovery - which today obviously includes the important and costly topic of e-discovery - is a particularly difficult area for a time-challenged state court judge to oversee alone. To keep discovery moving along, judges often prevail upon parties to retain the services of a Special Discovery Master, who is a private attorney (oftentimes a retired judge) with expertise in discovery-related issues. The use of Special Discovery Masters for complex cases is really exploding in state courts these days. Judges really have no choice but to go this route, given the substantial dockets that most judges manage - usually several hundred cases at a time. However, making parties pay for their justice, through the retention of a Special Discovery Master, does not really seem consistent with principles of American jurisprudence. Using Special Discovery Masters can also sometimes create delay. First, it takes a certain amount of time just to select the special master. After that, her responsibilities have to be defined. Communications between the special master and the judge also take up time. Add to this the fact that, as a practicing attorney, the special master's calendar is often as crowded as the court's, and you can see how delay can occur. And delay, of course, translates into increased cost for litigants.
Having said all this, I happen to think that certain courts as in New Jersey and several other states have a great bench that does an outstanding job notwithstanding its crowded dockets. And, while the use of Special Discovery Masters has some drawbacks, parties at least get a detailed examination of the issues.
Editor: Do crowded dockets mean that judges have less time for oral arguments and cross-examination?
Sellinger: As I mentioned earlier, most federal courts and some state courts just do not hear as many oral arguments as they used to. The opportunity to make oral presentations during trial has also been substantially curtailed in order to allow the trials to move more quickly. In major commercial cases and class actions, for example, judges now sometimes require a witness's direct examination to be submitted in writing and the witness takes the stand for the first time on cross-examination. This kind of procedure was traditionally reserved for administrative law proceedings where the rules of evidence are not strictly observed. I don't believe counsel should be required to forgo oral direct examination and simply present the witness for cross-examination just to move the case along because, when that happens, the court misses the opportunity to evaluate the key element of the witness's credibility - in my experience, oftentimes the factor that can actually decide the outcome of trials. It seems to me that a court cannot properly weigh credibility when the direct examination is submitted on paper and the first time that the court hears the witness live is during cross-examination by an adverse attorney. Courts obviously have to move their calendars and conserve their resources. And I believe that they have become very adept in making attorneys focus seriously on what issues actually are disputed and in finding ways to streamline their presentation. I believe that the average length of major trials has been reduced substantially over the last twenty years. All of that is for the good. But I believe courts go a step too far when they implement procedures that effectively cut the examinations of principal witnesses in half. To my mind, that is too much of a shortcut because it can materially affect the outcome of a case.
Editor: Do overcrowded dockets also affect class actions?
Sellinger: Certainly. Class actions don't often go to trial. When they do, plaintiffs often try to convince the judge that, because of time constraints, they should be allowed to put on their case using representative testimony. In other words, plaintiffs will call a couple of witnesses who they claim are representative of an entire class. Then they call an expert who is permitted to extrapolate from that representative testimony and make assumptions that are supposedly applicable to the class.
Again, this practice of just hearing from "representative plaintiffs" is not consistent with our principles of jurisprudence. Judges whose time is very limited understandably see this practice as an efficient way of hearing lots of claims at once. But it also negatively impacts the court's ability to provide the corporate defendant with an opportunity to present all of its defenses. That creates serious due process concerns when a case is being tried on behalf of thousands or even millions of putative class members.
Editor: Do crowded dockets affect how courts decide summary judgment motions?
Sellinger : I believe this factor is receiving a little more attention than it deserves in the current debate over court underfunding. Certainly there have been instances where a judge has summarily denied a case-dispositive motion rather than take the time to address its complexities and, in so doing, has allowed a meritless case to proceed to trial. But summary judgment is simply very difficult to obtain. Judges oftentimes want to give plaintiffs every benefit of the doubt and thus choose to err on the side of denying such motions. While sound summary judgment motions may be denied far more often than defense lawyers like, this is the function of many factors. I don't believe that judicial underfunding is among the most significant.
Editor: As we head into an economic downturn, states all across the country are cutting back court budgets. New York State judges, for example, will not be receiving a cost of living increase for the ninth year in a row. Do you see this as a major problem?
Sellinger: Judicial compensation is a key ingredient of fair justice. Today, far fewer lawyers leave successful practices to join the bench than was the case 20 years ago. Instead, more and more judges are coming out of the public service sector. People are also becoming judges at a younger age, and then, just as they are becoming seasoned and experienced, they sometimes leave the judiciary because they have to fund their children's college educations or due to other financial pressures. Of course, many talented judges come out of public service, and young judges often make great judges. But the bench needs diversity. Having judges with a variety of backgrounds - public and private, plaintiff and defendant - is important for an effective bench. Without that diversity, something very meaningful is lost.
Editor: Considering that judges and courts have no lobby, what kind of solutions to these problems do you see?
Sellinger: Fair and adequate court funding and judicial compensation are critical elements in ensuring the overall quality and fairness of the justice system. Given what's at stake when companies litigate and given what companies spend for legal services, companies will obviously benefit from any improvement in the court system and the quality of the bench. Increasing judicial salaries is one way to bring about those improvements. Even in the best funding scenario, though, quality judges will still be earning just a fraction of what they could earn in private practice. The fact is, judges serve at an extreme personal sacrifice, and they perform a valuable public service. I think we should do whatever can be done to see that their sacrifice is honored and their service is rewarded.