To Serve All People - Civil Conflict

Civil Conflict

The present civil justice system is top-heavy. It is overburdened with cases that proceed, or act as if they are going to proceed, all the way to full, traditional resolution by a contest between courtroom adversaries.

That model has brought with it all sorts of encumbrances. Civil justice often fails to distinguish between practices that are time honored and those that are merely old. The customarily passive role of officials within the system has allowed these other faults to calcify on the system.
Too often and to too many people, the pursuit of justice bogs down in the mire of the legal system.
Some of that problem is built into the two goals of the system.
First, all legitimate claims have a right to receive full and fair consideration in a court of law. As part of that process, all rights of the Constitution and Bill of Rights should be guarded assiduously.
Second, claims should be resolved efficiently, in a manner that lends itself to the least adversarial setting.
Quite obviously, the two goals are not easily compatible. The first goal has traditionally held sway over the second, sometimes almost to the exclusion of the second. The result has often diminished the public sense of justice.

Reducing claims

The most effective way of resolving these differences is to acknowledge that while every claim may have a right to be heard in court, not every claim needs to be heard in court.
In later chapters we describe other places and procedures for dispute resolution. If the judicial system is to succeed, more disputes will have to be settled by those other means.
Nevertheless, courts will continue to play an important role. Some issues require a public imprimatur on their resolution. Some disputes cannot rest on precedent, for they involve changes in technology, social mores or the law itself. Some cases contribute to the normative function of the law, adding interpretation that will be guidance in other instances.
So it is important that civil justice within the courts functions better, even if more civil justice takes place outside the courts.

Reducing delay

Delay is a form of economic obstruction, and the system should not be used to ration justice according to patience.
A passive and inefficient judicial system tolerates, and at times even encourages, substantial delays. Time becomes a weapon in the hands of those whose financial advantage or other circumstances enable them simply to outlast their adversaries.
As with direct economic barriers, this failing favors the strong and injures the weak. Parties that have been wronged settle for poor quality of justice, simply because they cannot wait on the remedies dispensed belatedly by the system.
Some delays impose daily consequences. Lagging disposition of cases involving the support, custody or protection of children, for instance, exacts its heaviest toll on the children themselves.

Case management

Judicial personnel must assume responsibility for the active management of cases.
At present, there are more than 250 courts exercising some form of civil jurisdiction in the state of Tennessee, not even counting municipal courts. Most of them operate as separate entities, taking on the characteristics of the presiding judge, with no uniform standards for case management.
Management styles vary from passive to aggressive, with more judges in the former category.
In many courts, cases are not moved toward final disposition, or set for trial, until a specific request is made by an attorney or litigant. Some cases sit for years with no action.
Time standards should be an important part of the courts' evaluation procedures, and judges or jurisdictions falling beyond a normal range should be held accountable. The normal range should be considerably shorter than present practice.
This will require substantially more active case management than is usually the practice now. New technology should make that redirection of effort easier as time goes on.

Case review

Summary dismissal powers should be available, to be used when it is clear at the outset that there is no merit to the case.
A judge normally does not dismiss a case now until one of the parties has submitted a formal motion, even when the case is deficient on its face. Summary review and dismissal power would save the object of meritless lawsuits the time and expense of having to respond and request dismissal. Even some plaintiffs would benefit from early notice that no legal claim could be pursued.
Summary dismissal powers are useful not just because they might be invoked, but also because they bring the judge into early consideration of each case.
Likewise, it is often clear to an assigned judge that quick resolution without additional costs could be achieved early on. Formal settlement conferences and other mediative procedures should be used promptly in such instances.
Continuances have become too routine. We recommend that the Supreme Court establish a more restricted policy for granting continuances.
Continuances should not be granted unless sufficient grounds exist, and should never be granted merely by the consent of the attorneys. No practice sends a stronger signal to other parties in the justice system that the system is designed for the convenience of attorneys. In fact, convenience of the attorneys should not be sufficient grounds for granting a continuance. Good cause, as outlined in the policy, should be shown in every instance.

Limited discovery

Abuses of the discovery process are a major area of public complaint. There are ways to make it simpler and more restrained without sacrificing just outcomes.
Discovery is designed to streamline a lawsuit, providing pertinent information to both parties that will narrow the issues, put both parties on equal footing, and speed up the judicial process.
Too often, its goals have been turned on their heads. Discovery is now used to complicate the issues, fish for information that will broaden the dispute, put one side (the poorer one) at a disadvantage to the other, and delay the case. Both plaintiffs and defendants can use discovery to impede resolution rather than facilitate it.
Discovery should be limited to only that amount of information necessary for a just determination of the original claims. Appropriate safeguards should insure that privacy beyond the issues of the case is protected and that true discovery is appropriately motivated.
Initial pleadings should include mutual discovery ? sufficient information to define the issue in dispute and provide a framework for rulings about additional discovery. The court should then specifically set out the limits of further discovery.
Ready access and review by the court should be available throughout the discovery process, and the court should resolve disagreements over discovery before they produce unmediated hostility between litigants or their representatives.
Under a judge's supervision, the case manager should be able to impose sanctions for any obvious abuse of the process. Appeal of the discovery orders and sanctions should be limited to one direct appeal to the sitting judge, with further sanctions available for frivolous appeals.
Discovery motions should be scheduled and decided quickly. The case manager should refer motions that resolve a conflict or a portion of a conflict as soon as possible for disposition by a judge.

Expert witnesses

Expert testimony is also subject to abuse. At times there are too many expert witnesses, and their expertise is either too small or too biased. Their contribution to justice should not depend on the resources of a litigant.
Too often, in fact, expert witnesses are lined up on opposing sides like so many hired guns. The practice undermines justice in the particular case, but it also undermines public confidence in the general process.
Stronger case management can limit these abuses.
The case manager should determine at the earliest possible time how many expert witnesses are appropriate, considering the subject and complexity of the particular case.
A witness's expertise, however, does not depend on locality, and the present restrictions should be removed. If the expert doctor is in Atlanta, interactive video could make it easier for him to appear in a Nashville courtroom than in a Marietta one. His availability should not be limited by either a state line or a plane ticket.
In certain complex matters, the expertise best resides in the jury box rather than the witness stand. When appropriate, jury panels should consist of qualified experts in such technical fields as accounting, business dissolutions and construction.
In fact, we recommend that the judicial system remain open to expanding the list of such areas in the future when both parties agree to do so. Developments in technology make it likely that a higher and higher proportion of cases will involve constant reference to technical matters that might baffle the average jury and perhaps even the average judge. Greater use of specialized jury panels might also stave off the tendency to create specialized courts, with their extra administrative requirements.
If efforts to resolve more issues outside the courtroom are successful, broadening expert juries might not be necessary. If the efforts fall short, specialized juries might at least offer some relief.

Jury support

Only the jury provides the reassurance of neutral justice rendered by peers, a reassurance that shores up public faith in the judicial system. For that reason, juries themselves need support and consideration.
Juries remain imperfect means of deciding disputes. So do all the other means.
In fact, the jury has become a strongly American institution. Most of the rest of the world does not have them at all, and where they do exist, as in Great Britain, their use is more limited.
Their strength here may rest on populist suspicion: Jury decisions that the public considers baffling are better for the system as a whole than bench decisions that appear corrupt. Unfortunately, that is often the perceived choice in the public mind, but the very existence of juries helps to mitigate the cynicism.
More positively, they are an institution that does assure ordinary citizens of a stake and even a direct role in public life. They may reduce the very skepticism that gives them such widespread support.

Jury membership

Beyond the philosophical grounds, though, there is much about juries that can be improved, for the sake of both the judicial system and the public jury members.
In the present system, prospective jury members face an uncertain lottery. Some may wait for a tedious few hours, only to be dismissed. Others may find themselves with a prolonged obligation. Those who do serve often find themselves in uncomfortable quarters, with token compensation, and treated as outsiders.
Not surprisingly, jury duty has become jury avoidance. Entire occupations believe it important that they not be asked to fulfill this basic civic service.
Selection and service should be modernized so that persons called upon to do their civic duty in jury service could serve the shortest time period consistent with the needs of justice. Ordinarily, citizens called to jury service should be able to count on a certain number of trials or days as maximum commitments.
Jury membership should not be skewed towards those who find it convenient. Automatic exemptions for certain categories of persons should be abolished. Peremptory challenges should be substantially reduced. Too often peremptory challenges are justified because the judge has not been stringent in reviewing challenges for cause. The more that the judge takes an aggressive role in determining appropriate challenges for cause, the less there will be a need for peremptory ones.
The examination of prospective jurors should be simplified and shortened. Pre-trial questionnaires could shorten courtroom time. The privacy of jurors should be protected in areas that are not relevant to jury service.
Consistent with our recommendations for a more consolidated trial court structure, jury service should be administered in a unified fashion, through the district judicial administrator. Jury pools should be drawn from the full judicial district. Jury terms should be short.
Above all, juries should be included in the judicial system's re-orientation to the public. Jury duty normally involves some sacrifice by citizens, and that sacrifice should not be compounded by inadequate facilities, interminable waits, incomprehensible directions or haughty attitudes from judicial personnel.
Jury service is an important public window on the judicial system, and the view should enhance public confidence rather than diminish it.

Jury size

A twelve-person verdict is not the only form of proper justice.
Under the best of circumstances, courts should give leeway to other forms by mutual agreement of the litigants. Agreement is not always possible though.
The commission recommends that the standard jury for civil cases be six persons. By agreement, there might be up to twelve members, or there might be fewer than six, a likelihood when expert juries are used. Experience elsewhere does not suggest any notable change in outcomes by reducing the standard civil jury from twelve to six, and out of consideration for jurors the lesser number should therefore be sufficient.
Criminal cases create other considerations, though. The twelve-person jury provides a greater sense of anonymous security for the individual juror, making it easier for the juror either to vote for the state or to hold out for the defendant, in both cases with less fear of personal reprisal.
The commission recommends that the twelve-person jury remain the standard in criminal cases, again allowing for smaller juries by mutual agreement.
In addition to smaller juries, litigants should also have choices among non-jury trial forms. One example is the traditional judge with no jury, but there should also be opportunity for various modes of arbitration and even an inquisitorial setting, in which the judge questions the parties, with or without attorneys, and makes decisions based on that process.
There has been some sentiment for less-than-unanimous verdicts in civil cases. While that would address the problem of renegade jurors, we are not certain that problem is a burdensome one.
Some consideration of lowering the unanimous threshold might be appropriate in the future. But if other aspects of change were implemented first, including broad alternative dispute resolution, the issue might appear to be even less frequent than it is now.
Again, though, agreement of parties who desire a sure resolution should be sufficient for allowing a less-than-unanimous verdict.

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