Survey of Experienced Litigators Finds Serious Cracks in U.S. Civil Justice System
Kourlis, Rebecca Love, Singer, Jordan M., Saunders, Paul C., Judicature
If the large number of anecdotes shared in law offices and court-house hallways are any indication, many in the U.S. legal community now fear that the nation's civil justice system has become increasingly disabled by disproportionate cost and delay, and that this dysfunction is impacting justice. Two national organizations recendy joined together to investigate these concerns and begin to quantify the scope of the problem. On September 9, 2008, the Institute for the Advancement of the American Legal System at the University of Denver (IAALS) and the American College of Trial Lawyers (ACTL) Task Force on Discovery released an Interim Report of the key findings of a major survey of some of America's leading lawyers, entided the 2008 Litigation Survey of Fellows of the American College of Trial Lawyers.
Both organizations were concerned about the impact of cost and delay on the legal system over the long haul. If potential litigants cannot or will not use the system as intended because it is too expensive or takes too long, disagreements might not be resolved on the merits of the parties' positions, as they should be. Common law will not be developed. And parties will not get their "day in court," an event that contributes substantially to litigants' perception of a fair process, and also serves as a mechanism for building public trust and confidence in America's system of justice.
In order to explore these concerns with specificity, in June 2007 IAALS and the ACTL Task Force on Discovery joindy began work to examine perceived problems associated with pretrial practice - primarily discovery - in civil cases. The focus of the research grew out of reports that the costs and burdens of discovery were precluding some potential plaintiffs from bringing meritorious claims, and were forcing some defendants to setde non-meritorious claims based purely on cost considerations.
IAALS and the Task Force examined existing studies on the cost of litigation and the impact of discovery. While valid, many of diose studies were decades old, and it became clear that new data needed to be developed on the dynamics of litigation in die 21st century. Accordingly, the two organizations agreed to undertake a survey of die more than 3,800 members, or "Fellows," of the ACTL.1 The survey focused on 13 different areas of the civil justice system, including civil rules generally, pleadings, discovery (including electronic discovery and initial disclosures) , dispositive motions, the role of judges in litigation, costs, and alternative dispute resolution. In most sections, survey respondents were also invited to provide additional written comments. The survey was administered in April and May of 2008. Nearly 1500 Fellows responded, a response rate of 42 percent.
Cost. Several major themes emerged from the survey. First, the survey confirmed that some deserving cases are not brought, and some meritless cases are settled out of court, not because of the strength of the parties' claims but because the cost of pursuing or defending those claims fails a rational cost-benefit test.
Eighty-one percent of survey respondents stated that their firms turn away cases when it is not costeffective to handle them, and 83 percent said that litigation costs drive cases to setde that deserve to be tried on the merits. Overall, 94 percent of respondents agreed that trial costs and attorney fees are an important factor in driving cases to setde. More generally, more than four-fifths of respondents indicated that the civil justice system is too expensive. As one respondent noted, "Civil litigation has priced itself out of the market." The survey also indicated a strong connection between cost and delay in civil cases: more than 9 out of 10 respondents agreed that the longer a case goes on, the more it costs.
Discovery abuse. A related theme emphasized that discovery abuse in civil cases remains a significant problem. …