Reforming the Concept of Judicial Reform

Every young Sunday school student knows the story of King Solomon and the baby. The story goes that two women presented themselves before King Solomon to settle a dispute. The two women claimed the same baby as theirs. King Solomon listened to stories presented by each woman. After some consideration, he called for his sword. He declared that he would split the baby in two and give each alleged mother half.

One of the women, in tears, screamed, "Give the baby to her! I don't want half!"

King Solomon awarded this tearful mother the baby. His logic: only the real mother would love the baby enough to give it up in order to save it. (For a humorous re-interpretation of this story, see Joseph Heller's God Knows.)

This message has been interpreted many ways. As I understand the law of the era: disputed property was divided equally. (Let us lay aside the distasteful suggestion that a baby is property.) Let me suggest an interpretation that is particularly relevant today: forceful and rapid enforcement of rules leads to rapid resolution.

Many of the modern efforts to fix our out of control legal system are addressing the symptoms of the problems in our legal system. As a lawyer working in the courts, judges have been taught that the phrase "split the baby" means "find the middle ground between two arguments." Like the phrase Uncle Tom, the vernacular use of phrase is nearly completely the opposite of what the original story describes. We think of splitting the baby now as meaning compromising to avoid judicial action. In truth the story is about resolute judicial action invoking compromise.

Many of the court cases I have been involved in, the judge listens to arguments, delays making decisions, pleads for the parties to settle, makes meaningless and irresolute decisions, and complains privately of their overwhelming schedule.

The court rules were not designed for this treatment. The court rules are designed to question whether every case belongs in court. See, e.g., Federal Rule of Civil Procedure 12(b). The rules on this have been so watered down that situations exists where one of my clients has no idea who the person suing him is or what my client is supposed to have done wrong to end up getting sued. Yet the case law interpreting rules similar to FRCP 12, noted above, prevent this case from being dismissed because the court procedure is supposed to uncover this cryptic information. If a case is completely out of line, the attorney bringing the case could be sanctioned by the court. FRCP 11(c). This procedure is rarely used.

Next the court rules are supposed to inquire if after the plaintiff has stated his case and the defendant has answered that complaint, the court is supposed to inquire whether the case can be settled without further inquiry. See, e.g., FRCP 12(c). This rarely happens because the defendant always denies everything of relevance. Some judges have been heard to say in open court that the procedural requirement of answering a complaint is a waste of time. After judgments are entered, most reasonable persons wonder why the parties could not agree on more of the story at this early stage.

Next the court rules allow a procedure for exchanging information. The federal concept of this process of discovery is that everyone surrenders all of their evidence or information to the other side without any particular procedural requirements. Nevertheless, conflict that judges need to resolve happen often in cases. See FRCP 26 to 37. Failure to follow these rules is supposed to incur sanctions. FRCP 37. This threat is rarely carried out.

The next step is to find out if there is any legal reason why the matter needs to go to trial. This is done through the process of summary judgment. See, e.g., FRCP 56. The idea here is based around the delegations of responsibilities between the judge and the jury. The judge as the ultimate voice on law is entitled to resolve all issues of law. The jury is the ultimate voice to resolve what happened. If, at summary judgment, the judge does not believe that the key points of what happened are in dispute, he can decided as a matter of law who wins. While this is not always likely to happen, because there is usually a dispute about which direction had the red light, what promises were made to make a contract, or who committed adultery. Even in these cases, just deciding what the rules of the game are is helpful. If a judge limit the parts of the story that are in dispute because everyone agrees that the parties met face to face to make their contract and that no evidence contradicts that $50,000 was the onlyoffer of payment, why put to a jury the question of what amount of money was offered? We know $50,000 was offered. Now the jury can focus on what actions were promised to be performed in exchange.

This is where judges procrastinate and avoid making decisions. All too often judges just say, "No one wins at summary judgment. Let's go to trial." Now the parties have to argue in front of the jury about how much money was offered to be paid. Summary judgment is a game of logic. Too few judges are well enough trained on issues of logic to feel comfortable focusing the issues for the jury.

This is one of the most damaging parts of our legal process as practiced today. More cases should be meticuously focused on this stage. The sharper the judge's knife in carving out the details of the dispute, the less there is to dispute. If the matters to dispute are reduced by resolute decision-making, the parties can more clearly forecast their odds of winning at trial.

Since preparing for trial is among the most time-intensive parts of litigation, this is the best point to resolve to disputes out of court.

This is where most efforts to avoid trials truly begin in earnest. Many states are now requiring that parties be forced to bring in a third party, called a mediator, to supervise and manage face-to-face settlement discussions. The mediator can't decide any issue because his job is to facilitate. Since this process results in nearly 60-80% of cases settled, it has rightly been hailed as a successful addition to the repetoire of resolving cases short of trial.

The other solution offered is arbitration. Often arbitration cases are decided without the legalities of court. This is promoted as an improvement because it makes the process faster. (Note my prior comments on speed in the movement of money for a corroborating concept for this argument.) However, this is based on hiring an outside party to make a fast decision with less information available or considered. The worst part is that the arbitrator has little sense that anyone is truly supervising his activities. The courts by law have little recourse to fix erroneous decisions. This bothers me as lacking in checks and balances. Nevertheless, because the parties can cite their case as resolved faster and more cheaply, even if less reliably, this increases the number of cases settled short of trial. Hence, it is declared to be good.

Part of what this misses is that many ridiculous cases are settled in favor of the frivilous plaintiff because it is a better business decision to settle the dispute than go to a confused trial.

This problem arises because the judges are too reluctant to make resolute decisions earlier in the case. Admittedly, this is not only because judges are afraid to decide, although that happens all too often. Many times we have cases decided by appellate courts that overturn cases made on legal rules. The problem is this trend has lead to the increase of time-consuming and non-sensical cases.

I would propose a new standard to this process of focusing on resolved disputes short of trial. I would focus on increasing the number of cases thrown out of court through use of the above procedures. This would require a change of attitude rather than a new program. However, the costs to the system in new salaries, new computer systems, new courthouses, and additional billable hours would do more for helping than more arbitration, reduced punitive damage awards, picking and choosing parties immune from prosecution.

Using this standard, one of the more successful programs in the country is the Indiana medical malpractice review panel. The panel reviews all medical malpractice case before court cases start. The patient is not deprived of court, but he is forced to bring the science about why he should win very early. There are many other aspects of this law that I find helpful, but I would leave this for other commentaries. The net result the number of physicians that actually seek to practice in Indiana has increased dramatically over the past 20 years. The people of Indiana are blessed with one of the most talented pools of physicians in the country with unusually low medical costs. Granted the differences are not obvious enough because Indiana doctors participate in federal programs like Medicare and medical insurance that have regional and national effects on Indiana pricing. This decisive system reduces the incentive to sue doctors for questionable claims. It is a shame that this had to be grafted on to the court system rather done within the trial process.

The next problem is universal in the legal system. The number of persons that flat lie to the court is all too high. The reason for this is simple. With the growing number of people that take the oath to tell the truth, fewer and fewer feel a moral and religious obligation to tell the truth for fear of reprisals from God. So now we are faced with the need to judge those who lie on the stand as a matter of law.

This means that liars on the stand need to feel the heat for their lies. The only means are contempt of court procedures, which are poorly designed to handle this problem because the lie has to be too obvious, or prosecution for perjury.

Prosecutions for perjury are criminal cases that have to be brought by prosecutors. As elected officials in most states, prosecutors want high conviction rates for violent crimes. They don't want to spend their time and resources on prosecuting liars.

The consequences to the overall legal system are catastrophic and result in cascading failures and cascading lies supporting judgments by courts. The cascade is simple. A boyfriend is arrested for theft. The girlfriend comes to court to provide the boyfriend an alibi for the night of the crime. She lies. The jury finds reasonable doubt that the boyfriend was with the girlfriend. The boyfriend is acquitted and back on the street to commit more crimes.

Look at the girlfriend's decision-making process: she believes that she is better off with her boyfriend, so has an incentive to lie. Without a real threat of prosecution for perjury and without a fear of eternal damnation, she has no incentive to admit that he was nowhere near her on the night of the crime.

Let's change the prosecutor's policy on prosecuting perjury: aggressive prosecution even if low conviction rates are likely. Now consider the girlfriend's options. If she lies for her boyfriend, she may get him acquitted but at the personal cost of her own jail time. She now has a harder decision and the odds of the truth coming out increase.

Similarly in civil cases, if we return to the contract dispute, the businessman denying that he owed as much work to be performed is now facing jail time for misleading the court, even if he wins the contract case. Not all persons will change their decision toward telling the truth, but the reliability of witnesses increase marginally with each prosecuted claim for perjury.

The examples of indeciveness and lack of adherence to the rules results in a system that allows runaway ridiculous claims based on questionable testimony and evidence. Mediation gets the case resolution statistics higher, but this has the feel of Vietnam body counts: numbers that provide little evidence of the quality of action giving rise to the numbers.

These problems need to be addressed. Arguing about the value of strict constructionism are intellectually worthy and desirable, but they miss the real problem that exists at the trial court level.

The problems in our system is the gamesmanship that is allowed in the name of justice by the proliferation of cases and rules that, in the name of resolving disputes short of trial, increase the complexity and difficulty of actually deciding disputes quickly and accurately.