"Courts are available to all potential litigants in almost the same way the common is available to all farmers. Just as the villagers must be able to afford livestock before using the common, American litigants must be able to afford a lawyer before they can go to court. Once, however, this precondition is met, litigants take as much of a court's goods and services as they want when their turn comes up. In most places, of course, their turn doesn't come up often because of the length of this queue."
-- Richard Neely, Why Courts Don't Work, 172 (McGraw-Hill 1982).
On this cheery note, "10 experts" in the June 2011 issue of the ABA Journal submit their ideas on how to "sustain justice," and "tell how courts can do more with less." The unified theme running between these and many other popular articles today is the recognition that the financial crisis is not a passing one but instead represents a "new normal," like I have written elsewhere. As such, it is imperative that courts, like everyone else, adapt to these new conditions. The authors discussed here pose some great suggestions, while acknowledging the financial crisis is not unique to the courts but is one which every person and institution are subject today.
Flango & Clarke -- Which Disputes Belong in Court
Authors Victor E. Flango and Thomas Clarke discuss which disputes belong in court, and offer principled criterion for judicial triage. They note that "[i] the absence of criteria for making cuts in services, courts will either cut services evenly across the board or cut those with the least political clout and weakest constituencies." In the latter category, the authors noted that some of the most common cuts are in functions serving litigants and the public, such as reducing clerk hours, reducing staff to answer phones, and even suspending jury trials, "one of the key sources of public trust and confidence in the American justice system." As a consequence, the authors urge better use by the courts of triage, including:
- "that triage be done earlier in the process;"
- that it "be done more effectively and transparently;"
- that it "be focused on issues raised rather than the type of case considered;" and
- that individual cases be assigned to one of four tracks most suitable, ranging from full adversary to non-adjudicatory procedures.
Much of the authors' methodology relies on good old fashion doctrines of justiciability: is there a concrete dispute or disagreement between two or more people? The first step would be to identify which cases require an adjudicatory process, and afford them the highest priority. Besides involving concrete disputes, these cases will have high stakes such as to warrant full (e.g., costly, structured and burdensome) adversary proceedings, and/or involve parties who are unequal in power and status.
Next, cases not requiring the adjudicatory process would be afforded lower priority and/or diverted. Examples of such cases abound, and include:
- matters brought to court to make a formal record of status, such as name changes, marriages and naturalization;
- matters amendable to administrative resolution, such as traffic and insurance related, and debt collection cases, and matters arising under regulatory schemes; and
- multi-party matters concerning private and/or political issues, or involving questions of values or preferences, such as desegregation.
These cases would ideally be diverted to problem-solving, administrative, or modified adversary (e.g., ADR) tracks, through the screening and triage discussed. In this way, courts could focus on the adjudicatory dispute resolution processes rather than their increasingly "routine administration" matters.
10 Experts -- How Courts Can Do With Less.
1. Intercept federal tax funds, to pay for fins, fees, and cost or restitution awards.
2. The Bar must speak out for the Courts--like the Once-ler and the Truffula Tree, I suppose--since the courts are often not in a position to speak for themselves in the political environment.
3. That said, Courts must also do more to justify their budge requests, by "show[ing] that their budget requests are based on meaningful efforts to provide high-quality judicial services as efficiently as possible." On way to do this, would be, a la the prior article by Flango & Clarke, is to show they are triaging cases for more efficient disposition. Another way would be to demonstrate the use of court alternatives, such as "mediation, problem-solving courts and diversion programs."
4. Use of centralized intake centers. The expert here apparently envisions something like New Mexico's Law Access, were callers from all over the State can speak with an attorney or paralegal and be directed to resources other than courts that can help them with their needs.
5. Relax the rules on the unauthorized practice of law, to permit "nontraditional" but more efficient delivery of legal services, even by attorneys, such as hinted at in the more general legal products such as LegalZoom and JustAnswer.
6. Let attorneys advise self-helpers. "Sometimes a little bit of advice can go a a very long way," as Ken Burke puts it. Here in New Mexico, the 13th Judicial is a real pioneer in this regard, holding "pro se law clinics" five times a month, at which people can discuss with an attorney how to resolve their legal issue as a pro se, under specific agreement that no attorney-client relationship has formed. This means people get desperately needed help and attorneys are less likely to shy away from possibly ambiguous and "messy" situations.
7. Simply the civil process. This has a practical component--the civil system's complexity results in high levels of consumer/litigant dissatisfaction, which can in turn lead to an erosion of popular political support for the judiciary and its needs. However, simplifying the process could also drastically ease the burden on judges in following and enforcing all those procedural rules....
8. Emphasize procedural fairness, rather than the grandeur of the law and the bench. Beside possibly resulting in some simplification of the process, people who feel they were treated fairly will be more likely to appear, pay their fines and do their community service.
9. E-filing. The 13th Judicial District in New Mexico in turning to mandatory e-filing in stages and although there have been kinks and complaints in the start up implementation, it cannot be seriously neigh-sayed that in the long run digitalization will ease administrative burdens and transaction time and costs on all actors. Just think of the time saved in the Clerk's line, and the time staff save in sorting, collating and/or making copies!
10. End the war on drugs, which represents a considerable drain and suck on judicial as well as correctional resources.
Whatever anyone may think about any individual suggestion or tip, I think many would agree that the judicial system will be required to reshape itself in the coming years, and adapt to the "new normal." If the courts don't, litigants will likely look elsewhere for alternative dispute resolution services, sua sponte.
If you are interested in mediation, arbitration or other ADR services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
