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?
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