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A broken system and a challenge for legal scholars

US trial lawyer Reuben Guttman casts a critical eye on the American legal system.

“The United States' legal system is broken and there is plenty of blame to go around."

Now there is a blunt statement that should cause our neighbours across the globe to wonder why America’s minions travel to all corners of the earth extolling the virtues of the American rule of law.

To be clear, the system is broken, but certainly not the framework or values that launched the system.

On the criminal side of the equation, our jails house too many people whose derelictions would have been better handled with absent incarceration. Too many times, the incarcerated end up behind bars because they lack the resources to post bail, pay for adequate counsel, or appreciate their rights. Too many times we incarcerate those who should be treated by a viable mental health system but we do so only because our mental health system is over-taxed or otherwise not available. The statistics also indicate that the US criminal justice system has not dealt minorities a level playing field. Video tapes, iPhones and cell phone surveillance have illuminated the data, providing stark evidence of racially driven disparate treatment at the front lines of law enforcement.

All of this, which has made headlines in the US, has been the topic of Presidential debates at least between the two Democratic candidates. It is an important topic and merits aggressive public dialogue and the necessary changes.

What has not been discussed - at least as aggressively - is the other half of our legal system; the system by which civil disputes are decided. It is a system purportedly designed to address all forms of grievance, from divorce and child custody matters to complex antitrust, environmental and securities fraud cases. It is a system that relies on a single judge for each case and, in some matters, a lay jury to decide the facts. This dynamic has remained unchanged since the inception of the Republic, notwithstanding that electronic discovery and 21st century advances have made the pool of evidence more voluminous and the issues more complex. The role of experts has expanded and so too has the cost and complexity of cases that are brought before the same judge and lay jurors.   

In the new world of electronic discovery, and with complex scientific or technical analysis necessary to resolve civil disputes, we have a system that is now costly for all and cost prohibitive for many. Hourly rates for lawyers exceed the weekly take home pay for low wage workers and even if lawyers charged just for costs, only the best-healed clients could afford the money for experts, video depositions, and electronic document retention. This is what is well known to the US Chamber of Commerce and its corporate members and it is why those working on contingency have faced attack from those wishing to eliminate the possibility of zealous representation of "the little guy." 

Efforts to fix the system have only served as vehicles to game the system. Compulsory arbitration has taken the US on a path toward privatising the civil justice system. We are now in an era where issues of public concern including auto safety, nursing home abuse and neglect and workplace discrimination will be resolved behind closed doors without seeing the light of day. Our cherished doctrine of stare decisis is facing extinction through compulsory arbitration.  

Those desiring to eliminate frivolous cases at the front end hailed the Supreme Court's decisions in "Iqbal" and "Twombly," which eliminated simple “notice pleading” in favour of requiring the pleading of sufficient "facts" to make the claim "plausible" to a presiding judge. Now the courts no longer get concise complaints laying out the claim in simple terms; they are burdened with documents of 100 to 300 pages memorialising every fact just in case one of those facts might be needed to oppose a motion to dismiss.        

Efforts to dismantle the class action process – a process thought too costly by the Chamber of Commerce – were so successful that proponents of dismantlement realised that their clients were left without the ability to secure global peace. From the ashes of the class action system rose multidistrict litigation where cases are aggregated and defendants seek global peace and lawyers for plaintiffs spend more time rounding up clients and jockeying for leadership positions in the multidistrict litigation than they spend on the needs of the clients themselves. This is the system that has spawned the television ads that have inundated the airwaves. The ads, seeking clients for a myriad of cases, curiously lack any substantive information about the lawyers, who are sometimes nominally mentioned on the TV screen. In many cases the “TV Lawyers” pass the clients on to so called trial firms in exchange for referral fees. The “trial firms” then aggregate the clients when posturing for lead positions in multidistrict litigations. For their efforts, they earn the right to tax other lawyers a few case percentage points for purportedly leading the pre-trial processes.  Ironically, defendants now claim that there are too many cases in the mix that have no merit.  

Is there a future generation that will be capable of fixing the broken system? Our law schools, which strive to be the best, are immediately responsible for establishing the pool of future lawyers and training them. Their beacon of light is the US News and World Report, which sets the criteria by which law schools are judged. US News, which publishes its rankings in a special edition, makes it a priority for law schools to admit students with a high grade point average, but without attention to the courses taken or the quality of the institution where the GPA was earned.  Is it really a good thing that the future of our cherished "rule of law" will be placed in the hands of a pool of people whose selection was influenced by the criteria established by a magazine whose primary goal is to meet revenue marks by selling advertisements? It sure does not seem like a good thing.

Amidst a haze of legal scholarship that the Chief Justice of the Supreme Court has criticized as having little value to judges and practitioners, there has been no noticeable leadership or thought given to practical fixes for our broken system. Many of our scholars live in a world of data aggregation where they are given accolades for looking at trends in data while unfortunately ignoring the gum shoe investigation necessary to ascertain the real causes of problems and their fixes. Decades ago, public interest groups, or non-governmental organisations, exposed problems and provided objective insight for change. But today many such groups are beholden, by sponsorship, to players who have an interest in gaming the system to their advantage.

At the end of the day, the questions remain unanswered. How do you truly put together and try cases that involve numerous victims, large numbers of documents, and issues that are complex and often involve matters on the cutting edge of science? How do you bring legitimate race, gender and ethnicity grievances to court when the subtlety of the discrimination does not bleed through the facts as appearing on the printed page of a complaint? How do you fix the problems while maintaining allegiance to a basic rule of law that access to justice should be available even to the little guy? And, how do you fix the problems when you need to rely on the same cast of characters whose advice and conduct has been influenced by their own desire to game the system to their advantage? This is the true challenge for legal scholars; it is their time to provide practical advice.   

Reuben Guttman is a trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.

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13 May 2016

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