Expert Opinions

Unlimited and unmanaged discovery in civil lawsuits can be extremely expensive—and sometimes wholly out of proportion to the needs of the case. In a landmark decision issued this week, the Colorado Supreme Court put the brakes on discovery run amuk and clarified the duty of the trial court judge to manage the discovery in the case—at a minimum by considering the cost-benefit and proportionality factors set forth in C.R.C.P. 26(b)(2)(F).

Quality Judges has just released A Credit to the Courts: The Selection, Appointment, and Reappointment Process for Bankruptcy Judges. This study provides the first in-depth examination of the process for selecting U.S. bankruptcy judges, highlighting the similarities and differences among the regional circuits. Despite the number of cases processed in these high-volume courts, and their significance in the financial lives of individuals and businesses alike, very little was known about how the judges who preside over these courts come to be on the bench, until now.

As a former Chief Justice of the New Hampshire Supreme Court and a current member of the IAALS Board of Advisors, I commend Governor Maggie Hassan for her wisdom in establishing the Judicial Selection Commission to advise her in filling vacancies on our state’s courts. Such a commission ensures that political considerations take a back seat to qualifications, experience, and judicial potential in selecting judges.

IAALS has just released a research report entitled Family Law in Focus: A Retrospective Study of Colorado's Early Experiments with Proactive Case Processing. This report presents the results from an analysis of data from five pilot programs in four different Colorado courts that implemented proactive case management in family law cases. The data show that by providing active case management, assistance, and education to litigants, the likelihood of speedier case resolution is increased, which is the intent of CRCP 16.2.

IAALS’ new publication, A Roadmap for Review: Guide for Appraisal and Improvement of Caseflow Management in Civil Cases in U.S. District Courts, provides the tools for any interested federal judge to make a quick, initial assessment of the status of his or her civil case docket to measure how it compares to his or her colleagues as well as to courts across the nation. If further analysis and appraisal are deemed appropriate or desirable, this Guide provides the user with the tools to do so and recommendations for better practices.

In a recent blog post, Lance Soskin argued that "litigation is a multi-billion dollar industry that favors the wealthy," leaves everyone else significantly disadvantaged, and that the answer lies in the better use of alternative dispute resolution. I take a different approach. While mediation and arbitration certainly have their place, we cannot and should not abandon the system itself. What we need is a justice system that is more accessible, efficient, and accountable.

The oldest advice in the world is that the trick is not in knowing the answers—rather it is in knowing the right questions to ask. Such advice has broad application, and in the current debate about legal education, it is quite possible that the wrong questions are currently on the table. The question should not simply be: why does legal education cost so much? Rather, the question should focus on reassessing and re-measuring the value of legal education.

The National Center for State Courts has developed a new model for estimating civil litigation costs, known as the Civil Litigation Cost Model. The model is based on the amount of time lawyers expend on various litigation tasks and their billing rates, which together provide a snapshot of “typical” costs, by task, for a number of case categories. By reflecting how costs are incurred throughout the litigation process, and the variability of costs from case to case, the model provides insight into the effect of such costs on a litigant’s access to the civil justice system.

The American Bar Association's Task Force on the Future of Legal Education has been collecting comments from individuals and organizations since late last year. Educating Tomorrow's Lawyers submitted a comment focused on aligning legal education with the needs of an evolving profession, and made six recommendations.

Once again, law schools have found themselves the subject of a New York Times front-page article about the sharp decline in law school applications. According to the article, law schools are responding by cutting faculty, taking a closer look at affordability, and adding clinics and in-the-field training. But perhaps more interesting is the story the article doesn’t tell—the story of law schools across the country that are already in front of this wave by offering students a better education.

In mid-November, President Obama nominated Raymond P. Moore, a federal public defender, for a vacancy on the United States District Court of Colorado, which will open with the new year. Despite the fact that the process by which Moore was nominated mirrors versions used by twenty-one other states, there is concern that he may face a lengthy confirmation period, which has become a trend during Obama’s presidency.

Meaningful access to justice is the most important issue confronting state courts across this country. There can be little doubt that we now have a state justice system in America that is slowly eroding while at the same time becoming increasingly too expensive for the vast majority of our fellow citizens. These developments, left unchecked, will have real consequences that will go to the very core of the American promise. They should concern us all.