When Will Courts and Lawyers Learn: Not All Cases Are Created Equal

Our collective view of litigation is a bit like the old New Yorker map, which shows New York City magnified, and then skips most of the rest of the country, landing on the west coast. Thomas Clarke, Vice President of Research & Technology for the National Center for State Courts (NCSC), recently made that comparison, and he is right.

We all tend to focus on big litigation, with e-discovery, motions, and multiple depositions: litigation where both sides are represented by attorneys. That kind of litigation is extremely expensive and time-consuming and indeed does deserve attention and reform.

However, that is not the whole picture. As a NCSC study illustrates, complex litigation comprises only approximately 5 percent of state court dockets. In contrast, 75 percent of those dockets consist of contract cases—mostly smaller, and many with one or both sides unrepresented. These cases include foreclosure and debt collection cases.

Our system is failing these litigants, maybe most of all. The complexity of the process, the cost of legal representation, and the delays that the litigants experience all contribute to a denial of the just, speedy, and inexpensive resolution they should be guaranteed.

We are past the point where one size can even begin to fit all, when it comes to litigation.

For the complex cases, the research suggests that the solutions include:

• Early intervention and consistent attention from a judge (the same judge throughout the life of the case);
• Early identification of issues;
• Timely resolution of motions;
• Firm trial date settings; and
• Focused discovery, in which the lawyers cooperate to the extent possible.

For the simpler cases that involve only two or three parties, the cases in which the issues are clear from the outset and in which the parties already have most of the discovery they need, the solutions are quite different. They need a process that is streamlined, stripped of complexity, and efficient. They do not need frequent court conferences, or a detailed case management order. What they need (particularly for the self-represented litigants) is help understanding the process, the issues, and their options. The solutions in this category of cases include:

• Litigant portals;
• Disclosure of documents without a need for a request for production; and
• Automated mechanisms that notify the parties of their obligations.

A simpler process would hopefully also encourage lawyers to take these cases—on an unbundled or full-representation basis—so that more litigants have help navigating the system.

Our current system serves neither the complex nor the simpler cases. It attempts to be everything to everyone, spreading layers of due process like icing on a cake, in thinner and thinner patches. By treating all cases the same, we are just not listening—and leaving countless people behind. After all, Arkansas, Michigan, and Colorado really do exist, and they are all quite different from Manhattan.