July 9, 2012 § 2 Comments

Philip Thomas has an interesting post about a poll conducted by PR Newswire for Common Good, a nonpartisan group interested in government reform. The poll results are here.

You can read the poll result summary for yourself, but it should come as no surprise that it found that most people distrust the civil litigation system, find it cumbersome, and think it takes too long to resolve disputes. They also feel that too many frivolous lawsuits are filed. They fear the financial burden of litigation. Their perception is negative.

As members of the legal profession, we need to recognize that for most citizens perception is reality when it comes to the courts and the law. In part that’s because the knowledge that most people have of the legal system is shaped by tv and movies that distort reality for entertainment value, and by media with an agenda, and by gossip, because they have no first-hand experience of their own. For those laypeople who have had first-hand experience, I would guess that most of them have come away with an unpleasant taste. We can quibble with their conclusions, but that does not make the negative general perception go away.

Former Colorado Supreme Court Justice Rebecca Love Kourlis proposes five measures in an article in Atlantic online that would go a long way to fixing the civil justice system. She would give judges more tools to manage and triage cases, remove the majority of divorce cases from the adversary system, limit and streamline discovery, adequately fund courts and train judges, and speed up proceedings.

I have long advocated for swifter resolution of chancery matters, and I try to push cases along, both contested domestic cases and probate matters. I already place an expiration date on temporary judgments, enter a scheduling order in every contested case, and require a pre-trial conference and order. I think chancery judges have tools available to move cases along, but I would be open to more measures, such as mandatory disclosures in divorce cases and more flexibility to dismiss unmeritorious cases and probate matters that have been left for dead. If we can improve the efficiency of the system, it should improve the public perception.

Lawyers and judges have an important role in educating the public about the legal system and how it operates, especially since the subject of Civics in our schools has been de-emphasized by being lumped under the heading of Social Studies, along with geography, health and personal hygiene, etiquette, and how to balance a checkbook. Randall T. Shepherd, former Chief Justice of the Indiana Supreme Court, penned an article you should read about the necessity for civic education, the role of legal professionals, and how some are going about it in other states. 

In his article, Judge Shepherd says that “Judges and lawyers have traditionally not viewed themselves as having a central role in public education about law and government.” That may be true over the past 40 or so years, but I remember a time when lawyers were looked to by the community as a source of knowledge and wisdom about the law. It’s a role that has been eroded over time by media’s talking heads, politician-critics, and our own passivity.

People do not understand how the courts work, why they rule the way they do, what the law requires in given situations, and what is behind a particular outcome, and they assume the worst or rely on commentators who make their living by dramatizing and exagerrating things.

As a legal professional, you are in a position to uphold the integrity of the syetem. You should speak up when you hear people repeating misstatements about our legal system. You can do a lot of good for your profession and for the court system where you work by setting the record straight. It’s a function of your professionalism, as well as your citizenship.

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  • thusbloggedanderson says:

    Discovery: the URCCC provide for 90 days for discovery after an answer is filed, absent a scheduling order. That’s so draconian it’s rarely enforced, but the idea is sound.

    State courts should copy federal courts in requiring a pre-discovery conference that results in a scheduling order that requires good cause to change.

    Another problem specific to state courts (perhaps to MS ones) is the asinine practice of requiring hearings for most or all (in my experience, all) contested motions. Not even all SJ motions require a hearing. I would like to see state-court judges rely more on written motions & memos of law, and reserve hearings for evidentiary issues and particularly thorny legal issues.

    • Larry says:

      All sound ideas.

      I do require a scheduling order and a pre-trial conference with PTO in almost all contested cases. I say almost alll because some chancery matters don’t lend themselves to a PTO.

      I have consistently suggested to counsel that they submit SJ on motions, briefs, affidavits, pleadings and discovery, but most lawyers insist on “making a record” (although I don’t allow live testimony), I guess because they want their clients to see and hear in person what the lawyers submitted in writing.

      Anything that moves cases forward smoothly and efficiently is a good thing, in my opinion.

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