Too Much Lawyering, Too Little Law

Too Much Lawyering, Too Little Law

Description

Sometimes it appears, Tolstoy to the contrary, that unhappy families are indeed alike. From the vantage point of an American academic lawyer, what is most striking in first reading the admirable Report produced by Lord Woolf is its uncanny familiarity. Despite contact with the British civil justice system that is best described as episodic and anecdotal, I am nonetheless struck by the ready comprehensibility of the Report's depiction of the malaise of a common law system afflicted by an escalation of legal costs and a growing sense that justice is inaccessible to the bulk of the population. There is nothing foreign or remote in the idea of a legal system administered by an overburdened and understaffed judiciary, nor by the inability of law to provide security and redress in those daily affairs that Hobbes described as giving the essential incentives to industry in civilized societies. No better case for reform can be made than the statistical evidence of the wholly unacceptable level of costs that currently afflict the system. According to a sample of cases from the Supreme Court Taxing Office, the average costs allowed in cases worth £12,500 or less were £12,044. Assuming a comparable level of expenditures on the losing side in these cases, then the transaction costs associated with the legal system exceed the merits of the dispute by a factor of two to one. This absolutely extraordinary level of expenditures means that the legal system is simply too expensive, too inefficient, and too sclerotic to provide a meaningful forum for dispute resolution in the commonplace social interactions that fall within the confines of tort, contract and property. The greatest strength of the Woolf Report is its candid willingness to confront a legal system that by its generous insistence on providing the fullest protection of the law to all disputes, effectively denies any legal recourse to large numbers of disputants. The picture of the legal system that emerges from the Report is one that produces too much lawyering in the relatively few litigated disputes, and too little law in the resolution of the everyday conflicts of life. In echoing Lord Devlin, the Report stresses the need to discipline the legal system, to recognize that indeed ‘half a loaf is better than no bread.’ This, in turn, requires mechanisms for calibrating the level of justice available to disputants according to the stakes in the controversy. What emerges is an attempt to recast the legal system as less global, less party-controlled, less of a free market-in short, as managed justice. The impetus for managerial judging bridges the shores of the Atlantic. Since the adoption of the Federal Rules of Civil Procedure in 1938, and intensifying since 1983, as chronicled more fully by Professor Richard Marcus, American federal civil procedure has undergone a series of reforms aimed at increasing the power of judges to manage litigation. Some highlights include having scheduled pretrial and discovery conferences, together with increased judicial power to sanction wayward attorney conduct, increased use of summary judgment powers, increased capacity to experiment with streamlined discovery procedures, increased use of court-annexed alternative dispute resolution procedures, and the increased capacity of local courts to create local rules of procedure to deal with particular case specific problems. While these reforms are specific to the American legal culture, and particularly to the nettlesome role of the jury in civil cases as the ultimate trier of fact, the overall objectives are congruent to those found in the Woolf Report. The Report's conception of managerial judging rests on a tripartite foundation. The first is the use of managerial prerogatives to channel litigation in such a way as to streamline the process and reduce aggregate costs. The second is to increase the resources of the judiciary to play this more interventionist role. The third is to reform some of the rules of procedure to facilitate more economical administration of civil justice. As a general matter, I found the report more successful in the first two matters, and weaker in the scope of its conception of procedural reform. This weakness becomes clear when one considers the effect that procedure has on strategic considerations at almost every point in a legal dispute. The Report itself provides a strong example of how procedural changes can sometimes have unintended, negative effects in the case of the English experience with witness statements. When modifying or changing procedure, there must be thought to how those changes will effect areas such as discovery, offers to settle and summary judgments. While there is little that an outsider can contribute to the discussion of resource allocation within the court system, other than to note the obvious need for law clerks and researchers if the more interventionist goals for the judiciary are to be carried out, there is quite a bit that can be said about judging and procedure, even by a foreign observer. It is to these matters that I now turn.

Source Publication

Reform of Civil Procedure: Essays on ‘Access to Justice’

Source Editors/Authors

A. A. S. Zuckerman, Ross Cranston

Publication Date

1995

Too Much Lawyering, Too Little Law

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