The Dawning of a New and Improved Civil Justice System
I am sitting at the kitchen table at the ranch house, watching the sun rise. The sun is lighting the hills, one by one. It occurs to me—sappy or idealistic as it may seem—that a new day is also dawning on how courts handle civil cases, hill by hill.
Lawyers, judges, and litigants alike have all come to the conclusion that the system is too expensive, complex, and time-consuming. If we are serious about having civil justice that is indeed just, speedy, and cost-effective, we have to make changes. Big changes.
That recognition alone is a huge step forward. But, it is also not enough.
We now find ourselves in the midst of developing consensus around the steps that need to be taken. On the federal court side, there is agreement that judges need to be more engaged and participatory in the process. There is also consensus that motions need to be resolved in a timely way, that discovery is a source of potential abuse and should be limited, and that trial dates need to be certain. The new federal rules amendments attempt to address some of those issues—changes in judicial case management protocols attempt to address others.
In the state courts, the hill-by-hill progression is particularly evident. Some states have already moved toward rules changes, triaging of cases that need the most oversight, and more involved judges where needed. In 2014, the Conference of Chief Justices appointed a committee to examine what states are doing, pool the national expertise, and develop recommendations for change that could be implemented across all state courts. Those recommendations are evolving out of a remarkable convergence of good will and momentum toward change. They will become public in early 2016.
This movement has come from the hearts and minds of lawyers, judges, and court staff: the people who are accountable and responsible for providing justice. We all recognize that we are not doing the job that needs to be done.
Each jurisdiction may address the problem somewhat differently—appropriately so, because different jurisdictions have different issues and different cultures. But, the important shift that has clicked into place is that we all accept the need to do better. How we do that is important—but why is perhaps even more important.
So, the sun is rising on the potential of a new civil justice system, that provides justice—for all—and that is fueled by the good will and commitment of lawyers and judges across the nation.
Photograph by Carol Mackay