NCJ Number
66932
Journal
ORANGE COUNTY BAR JOURNAL Volume: 6 Issue: 3 Dated: (FALL 1979) Pages: 367-77
Date Published
1979
Length
11 pages
Annotation
MAJOR PROBLEMS OF THE LEGAL SYSTEM IN THE UNITED STATES ARE DISCUSSED AND POSSIBLE SOLUTIONS ARE SUGGESTED; THE ADVERSARY SYSTEM, PRETRIAL DISCOVERY PROCEDURES, LEGAL FEES, AND THE JUDGE'S ROLE ARE ADDRESSED.
Abstract
AS THE LEGAL SYSTEM WORKS NOW, IT IS AN ENDLESS, PROHIBITIVELY EXPENSIVE STRUCTURE SEEMINGLY DESIGNED TO BENEFIT THE LAWYER RATHER THAN THE CLIENT. CRITICS OF THE SYSTEM INCLUDE THE PRESIDENT OF THE UNITED STATES, RALPH NADER, AND THE CHIEF JUSTICE OF THE UNITED STATES SUPREME COURT. DESPITE CRITICISM, HOWEVER, LAW SCHOOL APPLICATIONS ARE AT A PEAK, AND EXTABLISHED FIRMS ARE RAPIDLY EXPANDING. IT APPEARS THAT A BASIC PROBLEM WITH THE SYSTEM TODAY IS THAT THE ADVERSARY SYSTEM PER SE NO LONGER EXISTS DUE TO EXCESSES AND ABUSES. IT HAS BEEN REPLACED BY A SYSTEM OF COERCION THAT IS HARDLY A SYSTEM OF JUSTICE. THERE ARE TWO FUNDAMENTAL REASONS FOR THIS CHANGE. FIRST, THE OVERUSE OF DISCOVERY AND PRETRIAL PROCEDURES HAD DEVELOPED INTO A FINANCIAL ADVANTAGE FOR LAWYERS AND A DISASTER FOR THEIR CLIENTS. SECOND, THERE IS A WIDESPREAD FAILURE OF JUDGES TO ACTUALLY TRY LAWSUITS RATHER THAN MANAGE THEM. ONLY 2 TO 3 PERCENT OF CIVIL LAWSUITS ARE TRIED TO CONCLUSION BEFORE A JURY AND ONLY ANOTHER 5 PERCENT ARE TRIED BEFORE A JUDGE ALONE. THEREFORE, MOST DISPUTES ARE SETTLED IN PRIVATE CONFERENCE ROOMS BY THE LAWYERS INVOLVED AFTER LENGTHY COLLECTION OF DEPOSITIONS, UNNECESSARY PAPERS, AND INTERROGATORIES AS WELL AS ENDLESS QUESTIONING. THE SYSTEM DOES NOT ELICIT FACTS AS RELIABLY, QUICKLY, OR INEXPENSIVELY AS DOES AN OPEN COURT TRIAL. THE CONCEPT OF SETTLING OUT OF COURT THROUGH SUCH PRETRIAL PROCEDURES HAS NOT WORKED; IT IS AN EXPENSIVE EXERCISE IN FUTILITY FOR THE CLIENT. INCREASING THE NUMBER OF TRIAL COURT JUDGES IS NOT THE ANSWER. RATHER, SINCE A GOODLY NUMBER OF TRIAL JUDGES LACK THE TOUGHNESS, DECISIVENESS, AND ARTICULATENESS THAT ARE REQUIRED TO TRY CASES OUT-OF-COURT 'MINITRIALS' ARE ENCOURAGED. JUDGES SHOULD BE REQUIRED TO CONDUCT BUSINESS IN THE OPEN COURTROOM AND TO RULE ON MATTERS ORALLY FROM THE BENCH. THE TESTIMONIAL FORM OF PRETRIAL DISCOVERY SHOULD BE ABOLISHED AS MUCH AS POSSIBLE. IN ADDITION, JUDGES SHOULD USE PREDETERMINED GUIDELINES TO CUT LAWYERS' CONTINGENCY FEE ARRANGEMENTS.