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Justice

Rebecca Love Kourlisand Dirk Olin

Civil Courts in Jeopardy and

Why You Should Care

Rebuilding

Institute or the Advancement o theAmerican Legal System

Foreword by former Supreme Court Justice

Sandra Day O’Connor



JusticeCivil Courts in Jeopardy and Why You Should Care

Rebuilding

Rebecc Love Kourlisnd Dirk Olin

Institute or the Advnceent o theAericn Legl Syste



© 2011 by Institute or the Advnceent o the Aericn Legl Sys-

te, nd Dirk Olin

All rights reserved. No rt o this book y be reroduced or trns-itted in ny or or by ny ens, electronic or echnicl, includ-

ing hotocoying, recording, or by n inortion storge nd retrievl

syste—excet by reviewer who y quote brie ssges in re-

view—without erission in writing ro the ublisher.

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Table of Contents

Foreword ....................................................................................xi

Preface ......................................................................................xiii

Introduction ............................................................................. 1

1. Civics nd the Courts: A Crisis Hidden in Plin View ......17

2. Gbling on Judges ........................................................... 33

3. Te Iortnce o rils .....................................................61

4. Funding Justice nd Fostering Innovtion ......................... 79

5. Discovery: Te Deluge ....................................................... 91

6. Te Conestog Wgon on the Inortion Highwy ...... 109

7. Chnging the Process: It Is ie .................................... 129

8. Divorce Court ...................................................................145

9. Insiders Sek ...................................................................167

10. Building Citizen-Centered Courts .................................187

Primer: Courts and Lawsuits 101 ............................................ 193

Endnotes .................................................................................205

Glossary ...................................................................................224

Index .......................................................................................231



Foreword

Our country’s courts re in dnger. Our deo-crtic society deends uon the existence o

qulied nd indeendent third brnch o govern-ent. A helthy, ully unctioning judiciry rovidesthe counterblnce to the oliticl brnches tht isnecessry to ssure rotection o our constitutionl

rights. But suort or judicil indeendence hs l-tered, in lrge rt becuse our eduction syste isiling to irt n understnding o the role ndiortnce o the courts. We ust rebuild ublicsuort or intining nd rotecting the courts.

Tis book is n eort to contribute to tht roject. Ilud its contribution to the generl level o knowl-

edge bout the courts—or lwyers nd nonlwyerslike. And, I coend its observtions bout devel-oing judicil selection systes tht tke csh out o the judicil selection rocess nd tht rovide objec-tive judicil evlution tools to ssure ccountbility.

We re blessed with ny excellent judges ndcourt st round the country, in both the ederl

nd stte systes. But they nd ll the rest o us hven obligtion to work hrd to irove the syste sotht it is both irtil nd ccountble nd so thtit rovides just nd ecient resolution o cses. It is duty tht lls to ll citizens, not just to judges nd



lwyers. Tis book should be o interest to individulscoitted seciclly to the helth o the courts, ndore brodly to the helth o our deocrtic syste.

—orer Suree Court JusticeSndr Dy O’Connor



Introduction

his book is n eort to sound the clrion cllbout the crisis in the courts in twenty-rst-

century Aeric. Its urose is to illuinte why courts re criticl, nd how they re being eroded,deced nd underined—nd to resent soe solu-tions, both internl nd externl. Rebuilding Justice

is joint roduct o two uthors: one orer tril judge nd stte court justice who hs seen the systero the inside or thirty yers, nd the other leglirs journlist who hs de creer o ollowingnd coenting on the syste ro the outside. Wehoe tht, between the two o us, we rovide bl-nced ersective.

Our stories dier, so we will begin the sertely.

Te JudgeAter ew yers in Cliorni, erning undergrdu-te nd lw degrees ro Stnord University, I cebck to Colordo nd strted rcticing lw. Overthe ollowing ten yers, I rcticed in ediu-size

r, lrge ntionl r, nd in Min Street lw rctice in sll griculturl town in Colordo.Ater tht diverse exerience, I bece stte trilcourt judge in sll rurl district in northwesternColordo. I hndled deth enlty urder cses (y



2 R E B U I L D I N G J U S I C E

rst being two weeks ter I took the bench, hvingnever rcticed criinl lw), divorces, colex co-ercil disutes, wter cses, juvenile nd robtecses. It ws diverse docket in every sense o the word. I rode circuit ong three counties, over one very ountinous ss.

My rst dy s judge, the docket ws set in whtis reerred to s “cttle cll” ode. In short, every-thing ws set or two ties: 9:00 am or 1:00 pm. Tecourtroo ws cked. Prisoners ro the jil wereseted in the jury box, with sheri ’s deuties on eitherside. Attorneys nd their clients illed in the hll- wy nd crowded the benches. It ell to e to cll outthe cses in soe nuericl or other order. Te longnd short o it ws tht everyone st nd wited while

other cses were being herd. Te only erson in thecourtroo who beneted ro the docket ethod ws the judge. Everyone else wited, sent oney onttorneys, nd wsted their tie. Tt syste ws court-centric odel—not user-centric odel.

Ater seven yers on tht tril court, I sent one yer s editor nd rbitrtor nd then eleven yers

s justice on the Colordo Suree Court. Over thtlost twenty-yer eriod, I sw countless exleso syste tht is judge- nd lwyer-centric, nd notcitizen-centric. I ound ysel sending ore ndore tie dvocting or the redesign o the systend the reshing o execttions—everything rollowing jurors to tke notes nd sk questions o wit-

nesses (written out, then ssed to nd osed by the judge), to not keeing jurors witing in bck roo while the judge nd ttorneys hndle other tters;ro strelining the wy grievnces ginst ttor-neys re ddressed, to sorting out the best wy to



I N R O D U C I O N 3

hndle divorces or the benet o kids nd ilies. Te citizens rely on the syste, nd they re the ones who should be t the center o it. It is y ission inlie to work towrd tht gol.

It is lso the reson I let the court to ound ndserve s the executive director o the Institute or theAdvnceent o the Aericn Legl Syste (IAALS)t the University o Denver (htt://leglinstitute.du.edu). Te ission o IAALS is to identiy robles within the legl syste, reserch, roose solutions,suort ileenttion o those solutions, nd thenesure their success. In short, we try to x things thtre iss in the legl syste in order to ke it oreresonsive, trnsrent, ecient, nd irtil. Tisbook is the outgrowth nd overview o tht work.

I not riding circuit s tril judge nyore,but y exeriences in tht osition she everything Isee nd believe. I know how iortnt it is or every-one who wlks out o courtroo to believe tht they hve been treted irly.

My husbnd is shee nd cttle rncher, nd Ioten look to hi s y lodestr. He hs two x-

is tht ly here. First, i syste or ortion o syste does not ke sense, soething is wrongnd needs to be xed. Second, the esure o how uch eole cre bout soething is how hrd they re willing to work to ke it better. Tere re rtso the legl syste tht just don’t ke sense, nd Icre bout the syste enough to work very hrd t

trying to chnge those rts.

Te JournalistI ttended Drtouth College on debte schol-rshi, with every intention o going to lw school.




But y ssion or writing cobined with grow-ing interest in olitics to send e in dierent direc-tion—lbeit one tht eventully led bck to the jus-tice syste. Ater grduting ro NorthwesternUniversity’s Medill School o Journlis, I coveredCongress or the New Republic nd the St. Petersburg

Times. I et sentors nd residents, dodged bullet while writing stories bout the Nicrgun Civil Wr,nd delved extensively into debtes over Socil Secu-rity nd iigrtion. Occsionlly, I lso covered orlrguents beore the US Suree Court. Tt, long with reserch I conducted or biogrhy o WilliBrennn (written by Stehen Weriel nd ublishedin 2010) incresingly led e into legl irs.

In 1989, y wie nd I oved ro DC to Sn

Frncisco, where I took the hel o the San FranciscoDaily Journal , legl irs newser, nd eventully its sister glossy gzine, California Lawyer . Soon terour rrivl ce the Lo Priet erthquke, nd thenewser’s st gered u in nticition o delugeo ersonl injury litigtion. But it ws the dog thtbrely brked. Reltively ew suits were led. During

the ensuing decde, I develoed uch ore nunced view o the civil justice syste’s ilings nd chllenges.Sli-nd-ll lwsuits were not wht were chok-

ing the docket, I concluded, but business-on-businesslitigtion tht ws just veiled coercil strtegy.Siultneously, I bece incresingly disyed by the rise in rivte judging (vi high-riced edition

nd rbitrtion) nd growing oliticiztion o the judiciry, with oneyed interests ouring dollrs into syste tht hd once enjoyed irly brod exect-tion o nonrtisnshi.

owrd the end o the ’90s, I took sbbticl,




studying iigrtion lw s ellow t the University o Cliorni–Berkeley’s Institute o GovernentlStudies. We then returned to the Est Cost, where Ilunched wht is tody lw.co nd bece ntionleditor or the American Lawyer gzine. I subse-quently collborted on or directed ny wrd-win-ning rojects nd etures, including in-deth reort-ing on the llout ro the Enron scndl nd thedot-co bubble bursts, s well s, ost oignntly, writing on the libility llout ro the CtholicChurch’s child buse scndls. I lso wrote colun(“Crsh Course”) or the New York Times Magazine nd occsionlly contributed ieces on legl ttersto the Times’ o-ed ge.

It ws ter writing one such iece—on the socil

corrosion I believed ws wrought by New York’s ero-cious nd secretive judicil election syste—tht Ireceived bcking to lunch think tnk. Te Instituteor Judicil Studies inugurted unrecedented jour-nlistic trcking o judiciry whose ebers were toooten instlled by shdowy bckers nd whose recordo erornce ws so underreorted s to be virtully

oque. We hrvested etrics such s reversl rtes,docket disenstion nubers, nd otion rctice st-tistics, with our work ering in the New York Times,

the Wall Street Journal, nd Newsweek. When undingor tht roject ended, I bece editor in chie o Cor-

porate Responsibility Magazine , where y exeriencesre tody serving new redershi.

Just s I ws king tht switch, Justice Kour-lis roched e bout working on this roject, ndI let t the chnce. Justice Kourlis nd the insti-tute’s reuttion receded the, nd I egerly joineds ellow. My own writings bout reblncing




judicil indeendence nd ccountbility jibed withthe IAALS gend, nd the oortunity to co-bine y reorter’s d with the institute’s extensivereserch on civil justice reor hs been well worththe nights nd weekends tht I scriced to the eort.

Te Story Te justice syste is undentl to our deoc-rcy. Te courts re the counterweight to the othertwo brnches o governent, ssuring tht no brnchbecoes overzelous. Our Founders seciclly estblished syste o governent tht is not urejoritrin rule; rther, it is syste tht ocuseson rotecting the rights o individuls—even ginstthe jority i need be. Te courts re the lst line o

deense or those rights—the segurd. And, just tobe cler, this is bout ore thn the rights tht ttchto criinl rosecutions or deense. Te legiticy nd trustworthiness o the courts underlie our will-ingness to enter into contrct, hire or be hired, buy house, drive cr, or get rried. Te courts ensuretht all o the rights gurnteed by the US Constitu-

tion nd stte constitutions re enorced nd uheld. Te individuls who wer the ntle o this reson-sibility include not just judges, but jurors s well. Were the only country in the world tht hs the ben-et o right to tril by jury in civil cses s well scriinl cses, nd the enshrineent o tht right inthe Seventh Aendent ws no ccident. Te courts

were ositioned to blnce the excesses o the execu-tive or legisltive brnches, nd the jury to blnce theexcesses o the judges. ril by jury—in ll kinds o cses—ws envisioned s n dditionl wy to lceower in the hnds o the governed, s well s to




ensure trnsrency nd ccountbility o the courtsyste. Ldy Justice, ore even thn the Sttue o Liberty, is the becon o our reedo, our wy o lie,nd our sustinbility s country.

Now, or the bd news. Justice is in jeordy, or vriety o resons, but

ew Aericns know or cre. When the eduction oredicl services systes re t risk, there is ntionluror. But, s chter 1 ddresses, becuse jor-ity o the Aericn ublic does not understnd thecourts or recognize how vitl they re to our body ol-itic, there hs been no ublic outcry bout the justicesyste. (Seking o understnding, or those o ourreders who re not lwyers, you ight nd it use-ul to scn the Prier on ge ## nd the glossry

on ge ## beore reding on. Lwyers whose rc-tice does not regulrly involve civil retril nd trilrctice ight lso nd these sections to be useulreresher course.)

One lst introductory note: our ocus is on courtreor, not tort reor. Is tht just dierent con-sonnt, distinction without dierence, or erhs

just less incendiry oniker or the se concet?No. ort reor rooses endents to the lw thteither liit the circustnces under which injuredeole y sue, liit how uch oney juries y wrd to injured eole, or both. Court reor is dierent nil. It is n eort to reor the process,not the substntive lw. We believe tht king the

rocess work is the rel objective: ensuring tht i nindividul or cony hs to le or deend cse,they will coe wy ro the rocess believing thtthe judge ws ir nd irtil nd tht the rocess ws just, ecient, nd cost-eective. Tt objective




crosses ll ideologicl nd econoic divides—it is bid or syste with “justice or ll.” Court reorhs universl liction—nd involves uch higherstkes thn tort reor.

Why is justice in jeordy? We begin our exlor-tion with soe o the undentl lyers who oer-te within these ederl nd stte systes: the judges. Judges coe to their ositions in vriety o wys. Atthe ederl level, the syste is ointive—judges renointed by the resident, conred by the Sente,nd then serve or lie or until resigntion, retireent,or iechent. Tis ointent rocess is incres-ingly oliticized nd lengthy. Courts re oten let with vcnt sets or yers while the resident nd the Sen-te lterntely hold noinees hostge. In districts with

hevy cselods, dockets cn lnguish. Te bttle overnoinees in the Sente hs trickled down to ect notonly US Suree Court noinees, but lso lower courtnoinees, nd rty lition nd doctrinl litustests cn soeties be redointe esures.

In stte courts, where selection systes signi-cntly diverge ro tht o the ederl judiciry, these

robles re heightened. Although soething o ishsh, they generlly ll into three ctegories:ointent, election, or “erit selection.” In sttes where judges re elected, judicil cndidtes—ese-cilly t the suree court level—hve run incres-ingly no-holds-brred exensive election cignsin which they lign their oonents nd lign

theselves with rticulr interest grous. One o theissues tht judges nd lwyers re debting in thosesttes is how much oney in cign dontionsshould cuse judge to be required to ste down in cse involving contributor to his or her cign.




Tis resents sort o Price Is Right question: how uch does the ercetion o bis cost? Aointent/retention systes re incresingly under re s voterstry to gure out wht they should exect o judgesnd how to get the inortion they need in orderto evlute judicil cndidtes. In the entie, eventhose retention elections re seen by soe grous sn oortunity or king oliticl hy, nd judgesre looking over their shoulders or er o losing their jobs i they ke n unoulr decision. On to o tht, there is n entire oveent tht seeks to kecourts more ccountble to rtisn ideology— re-sonble gol i judges re just one ore secies o oliticl hck. But they’re not, s we will exlin inchter 2.

Jurors re lso undentl lyers in the civil justice syste, lthough they re ridly vnishingro the courtroo. Te Seventh Aendent to theUS Constitution gurntees us tril by jury in ostcivil tters in ederl court, nd the stte constitu-tions siilrly rovide or jury trils in ny kinds o civil cses. We re the only ntion in the world tht

gurntees tht right. Te jury is one o the wys by which our Founders sought to rotect ginst tyrnny nd ensure citizen rticition in every sect o ourgovernent. Yet, s we will detil in chter 3, jury trils re now lost nonexistent in civil cses. ody, tiny rction o lwsuits led ctully go to tril by jury. Mny o our reders ight initilly lud tht

ct, thinking tht juries re unredictble, untrust- worthy, nd incble o deciding tody’s colexissues. Te McDonld’s hot coee verdict ws bignews or onths, ybe even yers. It ws 1994roduct libility cse in which jury wrded $2.86




illion to n older won who suered severe burnsro silled coee she hd urchsed t McDon-ld’s. Te tril judge reduced the wrd to $640,000beore ny el, nd the rties then settled or nunknown ount under $600,000 beore the el ws concluded. Te cse nned renzy o concernbout runwy juries.

Te het o tht concern hs since cooled but jury trils hve not rebounded. Beore congrtulting our-selves on styieing tht rosect, let us reebertht the right to tril by jury ws one o the und-entl tenets o the Aericn Revolution. Te Dec-lrtion o Indeendence listed “the denil o the ben-ets o tril by jury” s one o the oenses by Englndginst the Colonies. We ought or the right to hve

citizen rticition in the justice syste, to ensuretht even the ower o judges ws not without liitsor ccountbility. Let us lso reeber tht jurors reus, nd when resented with cler inortion ndgood instructions ro the judge, we coe to reson-ble nd trustworthy conclusions.

Jury trils hve llen rey not only to sketi-

cis, but lso to the exense o the retril rocesstht deletes the resolve nd resources o rties to lwsuit beore they ever get to jury. Te tortuousrocess o getting cse redy to go to tril (nd y-ing or tht rertion) ight ctully hve the eecto ensuring tht it never gets there. Tis is trend weust reverse. When we s jurors re resent in the

courtroo, the whole rocess is ore inclusive, trns-rent, nd, well, deocrtic. It is the wy the syste ws intended to oerte.

Lst, but not lest, litignts re the unden-tl users o the civil justice syste. Te ces o these




lyers, too, re drsticlly chnging. Prticulrly instte courts, but incresingly in ederl courts, individ-uls re sel-reresented (in other words, they roceed without ttorneys). Te nuber o sel-reresentedrties hs incresed drticlly in the lst decde,either becuse they cnnot ord lwyer or do nottrust lwyers, or becuse they do not think their cserequires the services o lwyer. Te growing nu-ber o these litignts cretes unique chllenge in thecourt syste nd lys into nuber o the issuestht will be rised in the chters to coe.

Te shred coonent or these lyers is thestge on which they eet: the syste itsel. Our ocusis the civil justice syste—the tken-or-grnted nduch isunderstood civil justice syste. Our Con-

stitution nd Bill o Rights, brillint s they re, renot utoted. Tey rely uon the courts or inter-rettion nd enorceent. Tink bck in history toturning oints in the Aericn exerience nd therole o the courts. It ws the courts tht estblishedthe snctity o contrct (Dartmouth College v. Wood-

ward in 1819); the rotection o interstte coerce

(Wabash, St. Louis and Paci f c Railroad Co. v. Illinois in 1886); nd the right to n equl vote (Baker v.

Carr in 1962). It ws in the courts where the gony o slvery lyed out nd ws nlly ddressed: holdingrst tht slve did not hve the right to sue in court(Dred Scott v. Sanford in 1856); then tht “serte butequl” cilities were constitutionl (Plessy v. Ferguson

in 1896); nd nlly tht segregtion ws not eris-sible (Brown v. Board of Education of Topeka in 1954). It ws the courts tht ruled tht unions nd strikes werelegl (Commonwealth v. Hunt in 1842) nd courts ththve rsed the ening nd liction o the ree




exercise o religion cluse (Wisconsin v. Yoder in 1972,holding tht Aish children could be exeted rostte school-ttendnce requireents). Courts ro-tect ersonl roerty rights (United States v. Causby in 1946, holding tht the governent ws requiredto coenste rer or his lnd when low fying jets rendered it unusble); rights to ree seech (ly-ing rotection o ree seech to the sttes through theFourteenth Aendent’s due rocess cluse in Git-

low v. New York in 1925); nd ree ress (rotectingll stteents bout ublic ocils unless the sekerlied with the intent to dee in New York Times v.

Sullivan in 1964). Tese were ll civil cses. Civilcourts re the bywys or the estblishent o norsnd the enorceent o rights nd reedies.

Our ntion’s history is rked by ties when thecourts were both the lst resort nd the vision or theuture—brething lie into sttutes, holding eoleccountble, nd roviding “Equl Justice Under Lw.” Te role o the courts in our brnd o governent isto enorce the rights constitutionlly gurnteed toindividuls—ginst even the will o the jority. All

o us re ebers o soe inority with rights tht we hold der. Without the courts, those rights couldbe quickly eroded. However, the irtil, ecientdinistrtion o justice is iloding, nd nubero ctors re to ble.

At both the stte nd ederl level there is co-lex suort structure or the courts. Te on-the-

ground niesttion o tht suort is clerks, jury coissioners, nd dinistrtors who run thecourthouses nd undergird the judges. More brodly,both the ederl nd stte court systes hve dinis-trtive oces tht suervise budgets, trin judges nd




st, develo lns nd nlyze ileenttion, ndintin inortion systes. Tis colex suortstructure is t risk s courts ce ree-lling budgets.

Legisltors re urging the courts to gure out wysto cut out cse tyes, cut bck services, reduce jury tri-ls, nd dd ore olks who ct s judges (but whore relly not judges) to resolve cses ore chely.In nother corridor o the legislture, lwkers rendting tht certin kinds o cses be exedited orgiven riority on the docket. Criinl, juvenile, ndily cses necessrily ove to the ront o the line,nd civil cses lnguish t the bck. Tis is ulti-ceted roble tht, s we will discuss in chter 4,thretens to destroy the syste ro within.

Into this ix coes the ct tht the rules o

civil rocedure guiding ederl courts nd ny sttecourts were crted in 1938 nd hve not been un-dentlly revised since then. A gret del hs h-ened since 1938; enough to ke it eel like ncienthistory. With oultion growth, chnging deo-grhics, nd the dvent o the digitl ge, the ly-ing eld is lrger nd ore colex. Coounding

the issue re the judges nd lwyers who re chnge-verse nd trined to sell out every ossible contin-gency. Te result is colexity, nd with colexity coes dely nd skyrocketing cost. Te rule o thubong lwyers round the country tody is tht lw-suit ust involve t lest $100,000 to be cost-eec-tive. So i soeone deulted on your $50,000 ro-

issory note, or exle, you ight not be ble to nd lwyer to bring the cse. It is no wonder, then, thtore nd ore litignts re roceeding through thecourt syste without being reresented by n ttor-ney. We will exlore the interly o the rules o civil




rocedure nd the issue o costs in chter 5. Te cost o litigtion is one o the ctors driving

this ilosion o the civil justice syste. Litigation isthe orl ne or the lwsuit business—nd it is business. In this business, discovery is the ne o the ge, not tril. Discovery is the rocess by whichthe rties to the lwsuit dend inortion roech other. Tt inortion cn coe in the oro written questions, insection o docuents, ororl exintion under oth. Discovery cn be usednd bused not to seek truth, but rther to incresecosts, cuse dely, nd crete inconvenience—ll with view towrd leverging settleent. Plintis rou-tinely colin tht deendnts stonewll the ndniulte the to ensure tht the costs go u so tht

they will tke less or their cse. Deendnts colintht lintis hold the hostge by ling thin cses,dending brod nd dee discovery, nd levergingsettleent ossibilities.

ke docuent discovery s n exle. In 1938—or indeed u until bout 1988—it ws not unusul or lwyer to show u in court or tril with one or two

les o docuents. Tt se tye o cse cn now generte thousnds or even illions o docuents thtneed to be reviewed nd erhs roduced to the otherside, including e-ils, text essges, voice ils, ndultile drts o docuents. Under the current rules,all o tht inortion cn be ndtorily discover-ble even i it hs only tngentil connection to the

cse. Te costs o electronic discovery in ediu-size cse cn be in the illions o dollrs. Chter 6 will exlore the consequences o dt overlod to theunctioning o the civil justice syste.

Te robles o court unding nd excessive




litigtion costs cn coe together to reduce ccessto both the stte nd ederl civil justice systes orll but the very welthy. Tis is, however, not dethknell—rovided tht there is the necessry suortor innovtion nd solutions, s we will exlore inchter 7.

Finlly, the issues identied bove—budget crises,exensive nd tie consuing retril rocedures,nd reduced ccess to courts—re even ore cutely elt in ily cses, where the very nture o the ro-cess involves litignts in crisis. Chter 8 will exlorethe issues ced by children, ilies, nd individulss they ove through the doestic reltions rocess.

So wlk with us through the courts o the seconddecde o the twenty-rst century s we chronicle the

robles nd identiy soe ossible solutions. Tisis iortnt stu; the courts require the suort o knowledgeble nd ttentive citizenry i they re tocontinue to gurd the rrts o our wy o lie.

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Preview: Rebuilding Justice - Civil Courts in Jeopardy and Why You Should Care