What does the digital age mean for the American Legal System?

Has the digital age adversely impacted the quality of justice in the United States? The easy short answer is a resounding “yes.”

The legal process is governed by the Rules of Civil Procedure, adopted about 60 years ago in most states. Before then, the legal system could best be described as “Justice by Ambush,” because neither party was obligated to tell the other party anything about his case, his evidence, or his witnesses. Everyone just showed up in court and presented whatever evidence and witnesses they had, of course trying as hard as possible to create major surprises to which the other side could not quickly react and rebut. To correct this obvious problem, the Rules of Civil Procedure were adopted, basically requiring “full disclosure” of all evidence well in advance of trial so both parties could be properly prepared. That process worked very well for a while, but “full disclosure” 60 years ago meant something far different than it does today.

When I first started practicing law in 1969, there were no computers; indeed there was no photocopying equipment, no post-it notes, no portable dictating equipment, really no electronics of any kind. When we wanted to look at records maintained by other parties, we had to go over to their offices, read the documents while they were there (often in dingy basements shifting through boxes and boxes of junk). We then made handwritten notes about the documents (lawyers could not type in 1969), and put paper clips on documents we wanted the other side to bring to court (and hoped that the clips would not fall off accidentally or intentionally). We completed our document discovery usually in a day or two. It didn’t cost much, took very little time to complete, and was a reasonable approach to equalize the playing field for both sides.

Why clients are told to "keep quiet"

It is practically axiomatic in legal circles these days that lawyers instruct their clients to have no contact with the other side. Is this really good advice? Most lawyers take the position that their clients should not speak with anyone about the subject of the legal dispute to prevent the unwary client from sticking his foot in his mouth. This surely makes sense in a criminal matter where the potential defendant is clearly outgunned by the many years of experience of interrogating police officers and prosecutors. It may also be true where an injured claimant is contacted by a seasoned insurance adjustor who knows how to get information that will harm any future potential claim.

But it is not true for the vast majority of other civil cases that are filed, including divorces and other family matters, probate disputes, business disputes, real estate disputes, medical malpractice and a host of other claims that routinely end up in court without any conversations ever having been held between the two parties with the dispute. And why is it that this process only occurs in the United States? Are Americans that much dumber than the rest of the world where such secrecy is not the standard practice and where the parties actually try to resolve their disputes before they run off to the courthouse?

But it’s not just the lack of pre-lawsuit discussions between the parties that’s a problem; the lawyers themselves rarely discuss an early resolution. Most lawyers will tell you they don’t know enough about their cases in the early stages to advise their clients properly about a fair resolution. They need to spend lots of money doing discovery first. But is that what the clients really want? Would most clients rather have their cases resolved early on before all the money has been spent? Believe it or not, that is just not the mentality of the legal community, and, to put ultimate blame where it ought to be, it is also not the mentality of most Americans who would rather wash their hands of the dispute and turn everything over to the lawyers.

Too easy to file a lawsuit in the United States?

Is it too easy to file lawsuits in the United States? Should good faith settlement discussions or mediation be a prerequisite to the filing of a lawsuit? Lawsuits, like marriages, are easy to get into, but much harder to get out of. It costs practically nothing to start a lawsuit, and any minimally competent trial lawyer could draft all the paperwork in an hour or less. But once the lawsuit is started, it sets in motion a chain of events that, like nuclear fission, is not always easy to stop.

It also forces the defendant to incur the expense of incurring substantial legal expenses that the plaintiff, whose lawyer is on a contingency fee basis, does not incur. Then the discovery process kicks in, which initiates the real costs of litigation as lawyers bombard each other with demands for document production and interrogatories, followed by depositions, hiring of expert witnesses, and trial preparation activities. It’s not easy to stop this process. For one thing, once the attorney for the plaintiff has incurred costs, the only way to recoup them is by a settlement, something the defendant may have no interest in, at least before discovery is completed, when even more costs have been incurred and the case has become even more difficult to settle.

The cost of justice (part 2)

Let me ask again the same question I asked in my last blog – Is the cost of justice in the United States worth the price we pay? Here are some interesting statistics. In 1970, just after I started practicing law in Minnesota, the state’s population was 3,800,000; by 2000 it had grown to 4,900,000, a growth of 29%. During the same period the number of registered lawyers in Minnesota grew by over 400% to a total of 25,100 in 2005, which comes out to about 1 lawyer for every 200 people.

In the year 2000, over 2,000,000 lawsuits were filed in Minnesota, 700,000 alone in Minneapolis. Simply put, the citizens of Minnesota are paying 400% more for legal services today than they were just 30 years ago. Does anyone really believe that the quality of justice has improved by 400% during this time period? I would argue that in many respects, the quality of justice is far inferior today because the cost of justice is far higher. I’ll give you more information about this in a future blog, but let me make it absolutely clear – in my 42 years of trying lawsuits in Minnesota and many other states throughout the United States – the cost in absolute dollars of having a dispute heard in court has totally skyrocketed.

In 1970, a really big case would produce fees around $10,000; today virtually identical cases now routinely produce around $250,000 in fees, and many, many cases cost well over $1 million in legal fees to get resolved. And that’s only the fee on one side. Some cases have 3 or 4 parties each paying that amount in legal fees. I have been involved in many cases where the total fees paid to the attorneys involved far exceeded the amount actually paid to settle the case. How can that kind of expense possibly be justified merely to resolve a single dispute with another person?

My novel, The Litigators takes a real-life look at this issue. Look into it, you may be surprised by what you see really going on inside the legal community.

Join me next week for Is it too easy to file lawsuits in the United States?