HOW TO MAKE CIVIL LITIGATION TRULY CIVIL

We read all the time about the cost and delays inherent in hour civil justice system, not to mention the person to person hostility inherent in a win-lose environment. What are your thoughts about reform? Here are mine, from the perspective of one involved in it as claims adjuster, law clerk, and attorney since 1974.

Let’s encourage settlement before litigation. the sooner, the better. Before filing a lawsuit,Plaintiffs should be required to serve (or send) potential defendants a “Notice of Intent To Sue” letter outlining the factual and legal basis for all claims, with a time limit on it for a response. I recommend 90 days, with the statute of limitations tolled for whatever period. This procedure is now required for Medical Malpractice claims in California – why not for all claims everywhere, emergencies excepted? The Notice should also contain an invitation to mediation before a certified mediator (and mediators should have to undergo specified training and pass an examination to practice – not just anyone).  If the parties do not settle among themselves within the 90 day period, the Plaintiff would serve the lawsuit on the Defendant, but not file it with the Court until after the next step in the process, which is Mandatory Mediation.

The courthouse door should be closed to plaintiffs not wiling to mediate. The law should be, “if you aren’t willing to mediate, you can’t file a lawsuit.” For Defendants, the rule should be “If you aren’t willing to mediate and you don’t get a defense verdict at trial, you will have to pay the Plaintiff’s attorney fees and Plaintiff’s experts  at the customary hourly rates for your area.” I guarantee, that will make everyone mediate. When mediation actually occurs, we need strong mediators who will pressure parties to settle. Every mediation should contain a Mediator’s Recommended Settlement. If accepted by Plaintiff and not Defendant, and Defendant does not do better at trial, again, Defendant pays Plaintiff’s attorney fees end experts. If accepted by Defendants, but not Plaintiff, and Plaintiff does not do better at trial, then Plaintiff pays Defendant’s attorney fees and expert costs. If neither side accepts the Recommended Settlement, each side makes a final offer with the losing party paying the winning party’s attorney fees and expert costs. The prospect of draconian cost shifting will make parties seriously consider settlement.

If mediation fails, the case is filed with the Court and assigned to a Judge For All Purposes whose first task is to review the Complaint and see if it states a cause of action on its face. If it does not and cannot be reasonably amended, the Judge would issue a Notice of Proposed Dismissal, to which both parties would be able to respond before the Judge issues a final ruling (which would be appealable).It it can amended to state a cause of action, the Judge would give the Plaintiff 30 days to amend and then re-review that Complaint. If thereafter it still does not state a cause of action, the Judge would follow the same procedure as in the first instance. Plaintiff would have up to 4 chances to amend to state a cause of action. If Plaintiff fails to do so, dismissal would be automatic and Plaintiff could appeal.  Appeals at this stage would be considered under the de novo review standard.

Assuming a Complaint that states a Cause of Action, the next step is discovery. The Judge would meet with all parties and establish a Discovery Plan tailored to the case.The Judge would decide the type and amount of written discovery and who would be deposed, where, and for how long. The Judge, acting in an even-handed, unbiased way, could also mandate that certain written discovery be sent, that certain parties be deposed, and that certain questions be asked.  A dissatisfied party could appeal the Judge’s decisions, which would reviewed at the appellate level under the abuse of discretion standard. 

After discovery is completed, either side could bring a Motion for Summary Judgment with prior judicial approval after the judge reviews all discovery and responses from all parties. Again, if either party disagrees with that decision, it would be reviewed at the appellate level under the abuse of discretion standard.

If neither side brings a Motion For Summary Judgment or it is disallowed or is denied, the Judge then schedules a Mandatory Settlement Conference. If the Settlement Conference does not produce a settlement, the matter would be set for trial before a panel of three judges with expertise in the particular kind of case (I would eliminate juries in civil cases) who would hear and decide the case. All testimony would be video recorded. If a party disagreed with the verdict, the appeals court would review the tape of the trial and the evidence and issue its own verdict, which would be final as to questions of fact.

Review after appeal before the Supreme Court would be limited to questions of law and would be as of right rather than discretionary. To not overload the Supreme Court, I would amend the Constitution to provide for a Supreme Court of Civil Appeals wit multiple seven justice panels. The Supreme Court of Civil Appeals would either affirm the Court of Appeals verdict or send the matter back to the Court of Appeals to review the case again applying the correct legal standards, or could return it to the trial court if additional evidence is required.

Any thoughts?

WE ARE GETTING RID OF PAPER!!!

We are in the process of closing our storage facility where we store paper files  from our pre-paperless office days.  However, we will keep electronic images of the documents in our files forever.

Our normal practice is to image documents clients bring to us and give the originals back to the client. We refuse to accept responsibility for the safekeeping of documents not in our possession and control. None of our files contain original Estate Planning documents or any other documents where the original would have any legal significance. We do not do  criminal law or family law, or any other area of law which may require an attorney to keep hard copies of files indefinitely.

On any case where the last activity is more than five years ago, we are imaging the file and then shredding it. For any case where the last activity is less than five years ago, we are notifying the client of our intention to shred the file if it is not picked up within 60 days.  We will be inspecting each and every document in each and every file to be sure it is imaged before it is shredded. 

During the pendancy of a case, we will maintain hard copy originals of correspondence, contracts, and any other original documents that could be used as evidence in the case.  All other documents will be imaged and then shredded.

Going forward, at the conclusion of every case, we are handing over the hard file to the client and keeping only electronic images. If the client does not want the case file, it will be shredded. We will NOT keep, or be responsible for, any Estate Planning documents.

We expect to close our storage facility by the end of 2013.

WHY I DON’T GIVE FREE CONSULTATIONS AT MY LAW FIRM

Except for a few superstars and the very few lawyers who work at large law firms, most lawyers don’t earn huge incomes and live well, including me. I drive a six year old, high mileage car and live in a 1362 square foot condominium in a middle class neighborhood. If I wanted to be rich, I would not be a lawyer. I do what I do because I am committed to alleviating human suffering and improving the lives of others.

 

My law firm often receives phone calls from someone desperately seeking legal advice.  The scenario is usually heart-wrenching: home foreclosure; eviction tomorrow; second husband snookered mother into leaving her estate to her instead of first-marriage children; car repossessed even though payments current; or loss of life savings to fraud.  Common to all is not only adversity, but a desire for me provide immediate information to extricate them from their situation.  I tell them, yes, you need a lawyer, but when told the fee for consultation, only half book an appointment, come to the office, pay, and see me. The others? Some simply don’t have the money,  but the ignorant others ones express hostility by stating lawyers have a  duty to the public to provide free advice.

Our office does provide free consultations for Workers Compensation. That’s because the law requires a Workers Compensation Judge approve any fee paid to a lawyer in such cases. Most of those clients have already made up their mind they need a lawyer and are just there to do the paperwork to get them into the system. I tell the few that haven’t decided they need a lawyer to come back when they do.

Why do I take such a hard line on this issue? Because my services have value, just like those of other professionals like physicians and accountants who undertook a specialized course of study with a considerable investment of time and money. You pay to see your doctor. Why should lawyers be any different? What the public doesn’t realize is that like medicine, practicing law is a very high overhead business driven by public expectations of the legal profession.

My biggest expense is payroll. Without quality people, a law firm cannot give the competent and reliable services a law firm’s clients expect.  Law firm employees must be presentable and communicate well, orally and in writing, sometimes in a foreign language. Top-notch computer skills are a necessity; yesterday’s typewriter, copier or fax machine skills are useless. Given that lawyers deal with fundamental rights and often finances of their clients, the work ethic, punctuality, and attendance of law firm employees must, of necessity exceed that found in factories, hotels, stores, restaurants and health clubs. Most important, law firm employees must be able to handle extreme stress levels. Law is stressful. It deals with actual and potential conflicts between human beings, usually over money. Many people can’t handle that. Hence, law firm employees are not low-skill, minimum-wage types. They demand, and get, above-average compensation (compared to other industries), fully paid health insurance and other benefits, and continuing education. Additionally, the public demands I rent professional space in a decent building. Clients don’t want lawyers in an industrial area where rents are cheap.

Another major expense is malpractice insurance, at $8,000 to $12,000 per lawyer per year. Clients, and sometimes opposing parties, sue lawyers when they’re angry. I’ve been sued several times since I began practicing law in 1995, twice by an opposing party upset at how aggressively I defended my indigent client in a case without legal merit from the get-go. All the suits against me have been subjectively motivated by either a dislike of my personality, or clients who despite my best efforts, did not obtain the result they sought. But all the lawsuits have been frivolous. Nearly all were brought by disgruntled claimants representing themselves who dismissed their case once they figured it was meritless, or lost at the early stages. (One terminated in a very small nuisance value settlement). All these suits, however, cost my insurance company substantial dollars to defend. Unfortunately, insurors don’t look at the merits of the claim, only what it costs. Thus, I now pay very high premiums. One of the ways the price of legal services could become more affordable is to limit lawsuits against lawyers to claims where lawyers intentionally harmed clients or were grossly negligent and not allow claims at all by opposing parties in litigation against the lawyer for the other side. While the underwriting practices for malpractice insurance should be regulated to compel carriers to spread risks more widely, or laws changed to limit lawsuits against lawyers, I have to deal with the world as it is, not how I want it to be, and thus, the cost of insurance is reflected in what I charge for services.

Finally, we live in the digital age. Law is computer intensive. To serve our clients responsibly, we are paperless and back up our data off site, so if we burn down, we’re not out of business. By maintaining a database for case management, calendaring, document production, billing, accounting, and payroll, we’re able to do provide our clients with quicker and more cost effective service than old-fashioned, labor-intensive firms prone to human error arising from carelessness, laziness, or memory lapses. Computers, networks, and software require substantial capital investment and ongoing maintenance. Moreover, all legal research is now on the Internet. Since courts and legislatures change the law daily, static law books no longer provide the contemporaneous information a lawyer needs to write briefs, frame arguments and advise clients. A major expense for us is interacting with the non-electronic portions of the outside world, such as when we take over cases from paper based law firms and have to scan reams of documents to begin handling the case, or filing documents with Courts not yet equipped for electronic filing. Hence, another way to bring down the cost of law practice would be to mandate that all lawyers keep electronic records (paper optional internally) and make electronic court filings universal.

The point is, I don’t give legal advice or services away because I can’t afford to do so and stay in business.  To paraphrase Abraham Lincoln, the stock and trade of a lawyer is time and advice. Gas stations don't give away gas; grocery stores don’t give away milk – why should lawyers give away what they have to sell? Private law practice is still a business, with bills to be paid, just like a gas station, grocery store, or medical clinic. If you go to the doctor for medical advice, the doctor gets paid, one way or another. Why shouldn’t a lawyer?