All systems require periodic adjustment from the outside so that these systems don't enter into self-destructive or useless repetitive behavior that ends up destroying both the system and the people associated with that system. This truth applies to mechanical systems such as air conditioning, heating systems, automobiles, and airplanes. The outside intervention occurs most frequently through the maintenance process and less frequently through the re-design/replacement process which brings new technology and better design ideas into usage. In individual human beings the daily maintenance is handled through feedback from friends and family members who comment on behavior that might be improved, such as a change of diet or getting a haircut. However, even human beings need major adjustments occasionally such as a religious retreat, enrollment in AA, or open heart surgery. The legal system is similar to every other system it needs to be improved in small ways regularly, and it occasionally might need a major overhaul. Is the legal system currently in need of a major overhaul? Are the right people with the right experience and education in place to perform the overhaul?
The facts reveals a major overhaul is truly needed. Court administrators report that only 5% of American households possess the necessary resources to carry a typical civil lawsuit through from initial filing to trial. The governor of Illinois was so dissatisfied with the criminal process in his state that he commuted all death sentences in his jurisdiction. O J Simpson was found not guilty because the jury selection processes used in America are deeply flawed. Chief Justice Brennan said most lawyers representing clients in trials are not qualified to do trial work. A Catholic priest was recently asked if it was immoral for a legal profession to perpetuate a civil legal system that is so costly that only 5% of the people can afford to use the system; the priest said that society must provide an affordable way for people to resolve their disputes, and it would be immoral not to change such a costly system. It is clear that a major overhaul of the legal system is overdue.
The next task is finding and empowering people who can perform the major overhaul needed. Legal systems are basically information flow systems with decision points embedded in the information gathering and information refining process. America is blessed with a relatively new speciality called "information systems analysis". These people are trained to investigate different information gathering techniques, information editing and verifying processes, and the setting up of decision points where properly gathered and verified information is presented to qualified decision makers for decisions or guidance so the system can either finish up or move on to the next step. Information System Analysts are trained to look for cost efficient and time efficient ways to get the system to do its tasks. They are also trained to investigate standards or bench marks which decision makers can refer to when making their decisions. The use of standards and bench marks is required to give the decision making a predictable quality. Every American business, the US military, and most foreign organizations use these analysts to establish and improve their information systems.
So what would an Information Systems Analyst do if asked to improve Civil Court procedures in the U. S. The process would begin with a breaking down of the procedures to its component parts followed by detail analysis to determine what parts are essential and what can be changed or combined or eliminated to achieve time and cost efficiencies. Then comes the establishing of standards to aid the decision makers (judges and juries) in their determinations. Finally comes the process of synthesis where the component parts are reassembled into hopefully a better, quicker, and cheaper system.
An Information Systems Analyst would look at how certain tasks are handled in the U.S. today but he might also look at how those aspect of the system were handled in other countries as well. He would consider the use of modern telephone conferencing equipment, computers, pert charts, decision tables, etc. (1) He would consider the costs in time and money of certain common techniques and see if cheaper, better ways existed to do such things as document discovery or depositions. Depositions might be eliminated by having a judge's clerk simply call each witness, read them the petition and defendant's response paragraph by paragraph and ask them to comment on what they heard - modern transcription equipment could put the witness' comments in italics right behind or next to each paragraph of the initial filings. (2) With regard to the applicable law, perhaps a standardized Lexis search with specially formatted printouts could use the facts from the initial petition and defendant's response to inform the judge and parties on the applicable law thus eliminating the need for expensive, closely reasoned briefs by counsel on the applicable law. For instance, if the petition says "fraud" supported by certain facts and allegations with the respondent saying "but consider these facts as well" the special Lexis search would find all the cases where fraud was charged and certain facts were present. The results from those cases would be the applicable standard of law in this case. Of course, all this would lead to a trial where the facts and law would need to be presented to a jury and judge for decisions. (Note: A court sponsored Lexis search and witness interviews likely would uncover applicable case law and relevant facts which neither side in the lawsuit might chose to present to the jury or judge if left to their own preferences.)
In the preceding paragraph, the analyst would be trying to design a quicker better system which kept the adversary system, but where the initial steps in the processes were simply expedited via the use of modern information processing technologies. A more through analyst might look into legal systems in other countries, for instance in much of Europe all the information gathered in the information collection process is summarized by an employee of the court into a report which is then given to a panel of judges for their decision. The panel acts as both judge and jury and makes their decision without the cost of a actual trial.
The forgoing approach offers great promise for rationalizing our civil justice system. What barriers exist to implementing such an approach? The largest barrier is the legal profession which has great love for traditional process and deep skepticism for change in process. Lawyers feel "very qualified" to tell others how to operate their business affairs but are loathe to accept direction from outsiders on the how best to run legal affairs. Additionally, there is the question of money. A more efficient, more accurate legal system would tend to reduce the billable hours in a lawsuit and that would make final adjudication of cases more available to average citizens who are today cut out of the process by the high cost of litigation. Rich people, who today use frivolous lawsuits filed by very talented lawyers as a way to brow beat middle class people into accepting their desires, would be less able to use their wealth to manipulate the justice system because people of moderate means would be able to afford litigation and would feel the results will be more likely to be correct regardless of the legal talent on the other side..... However, cutting billable hours out of a lawsuit is not a goal which lawyers are likely to embrace.