This usually happens because, more than ever, courts focus mostly on matters of form over substance. They dwell more on how a claim was asserted rather than what the claim asserts. On empty battles over what evidence will be shared among the parties. On generating mountains of needless exhibits and testimony. Cases yield indecipherable, highly technical rulings by judges. Parties don’t see justice done, and faith in our system is undermined.
To regain their credibility, courts should eliminate the needless complexity that keeps most cases from being heard on their merits. Here are just five ways that could cut wasted court time by more than half:
First, courts should hear pre-trial challenges to a lawsuit only once in a single motion for summary judgment whose timing and content are fixed by the judge. Right now, many lawsuits lose years while the lawyers focus on repetitive challenges to whether the party suing is the right person to raise the claim, whether the complaint initiating the lawsuit is technically sufficient, and later whether the claim is strong enough to go to trial. Each motion yields briefs, responses, replies, arguments and decisions that take years. Allowing only a single pre-trial challenge can reduce time in court by years. Look at the docket sheet of a case in almost any state to see the hundreds of unnecessary filings.
Next, judges’ orders requiring evidentiary disclosures should replace the parties’ tangled and time-consuming requests for evidence from each other. A judge should hold an initial conference in which the judge would ask the parties what documents they want from their opponents. The judge would then craft an order about what must be produced. Brief remote conferences can police and supplement these orders. This would replace written requests between the parties, time periods for responses, objections, replies, negotiations, briefs, court arguments and written decisions. This process is the biggest time-waster in court today and needs greater judicial supervision. To watch the months and years roll by during this process of discovery, look at a typical case.
Once a case gets to trial, courts should require parties to stipulate to the facts that are undisputed, eliminating needless exhibits and long-winded trial testimony to prove things like whether a particular email was composed, sent and received or that, on a certain date, a bank account had a certain dollar amount in it. To see the problem, look at a typical exhibit list.
When they write decisions, judges should get to the heart of who wins and why in plain English, discussing background and tangential issues only if they are truly needed. Compare a typical decision to its more direct alternative.
Finally, appellate court rulings should aim at clarifying the applicable legal rules for the lower courts and the public in understandable language. Read this classic example from Justice Oliver Wendell Holmes and contrast it with a less accessible decision from a contemporary court.
There is no single reason American courts have fallen so far into the weeds in recent decades. Courts have always been slow. But law firms that bill by the hour, an increase in strategic but frivolous lawsuits and a judiciary unwilling to rock the boat may be part of the explanation. What is clear is that Americans are dissatisfied with the performance of their institutions and that there are definite ways for those institutions to address that dissatisfaction. In the judiciary’s case, needless complexity is the place to start.
Thomas G. Moukawsher, as a lawyer and a Connecticut Superior Court complex litigation judge, has been trying cases for some 40 years. He is the author of the new book The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It, from which this is adapted.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
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