Legal Ethics and Reform
A Proposal for Handling Medium Sized Civil Disputes in State Courts
The current civil law system does not handle cases involving between $5,000 and the amount of the governorís annual salary well.
The reason these cases are not handled well is the disconnect between the maximum damages that can be collected as compared to the total costs of lawyers on both side organizing a case, doing discovery, preparing for trial, going to trial and then going through the second effort of actually collecting the judgement obtained. Lawyers argue that such cases are usually settled. True but how are they settled? The lawyers always enter settlement negotiations with an understanding of which party has the extra resources to go to trial if a settlement is not reached.
Perhaps an example would help. Consider the costs involved in a case with say $70,000 at issue. The Plaintiffís lawyer has perhaps 80 hours of time involved in discovery trial prep and the defendantís attorney has an equal amount of hours doing the same. A well run law office has to get about 200 per hour to turn the crank on such a case. So (100 hours plus 100 hours) x$200 = $40,000 just to get a judgement. Then your have a defendant who is expected to pay the $70,000 but if he decides to hide his assets, so the plaintiff and his lawyer have to find the assets and pry the money out of the defendant say at a cost of $10,000 for investigator and more filing in court. So the plaintiff is out $20,000 for the trial plus $10,000 which is deducted from the $70,000 judgement to get a net of $30,000. (Of course, the defendantís expense of $20,000 is also a cost to society that might have been better directed.)
All this does not consider the time delays involved in getting to the result. Justice delayed is justice denied. This case as described would take perhaps three years from beginning to end.
Bottom line the plaintiff gets about 50% of what he is entitled to and that comes three years after he first finds out the defendant is not going to treat him properly.
Obviously the society needs to offer this plaintiff a faster, cheaper way to handle this dispute.
So here is a proposal.
1) When a civil case involving an actual damage claim between $5,000 (the small claims limit) and the governorís current annual salary comes it, it would go on a special docket.
2) These cases would then go to a new dept in the court system where newly minted lawyers would, working under the supervision of an experienced judge, investigate what both sides of the case have to say about the case, study the relevant documents, talk to people who have knowledge of the facts. This young lawyer would write up his findings, attach copies of documents, enclose recordings of interviews with witnesses, etc. He would also enclose a summary on the points of law that bare on the case. He would present this to his supervising judge.
3) The supervising judge might require that additional material be gotten for the file. He might, for instance, recommend interviews with some ancillary people or going back to people already interviewed for additional questioning.
4) Once the file is acceptable to the supervising judges. Three other judges would be picked at random and empaneled to decide the case.
5) The three judges would review the file; they would let the parties know they have the case and provide them with a copy of the case file, ask the parties if they would like to submit any additional information, etc.
6) After 60 days, the three judges would set a time for two parties and the govítís young lawyer to come together to argue their points put other information in the record if any. At this hearing the only lawyer required would be the young govít lawyer, but the parties could have their own lawyers as well if they wished.
7) Ten days later the three judges would hand down their decision. Any decision issued would call for 10% of the judgement to go to the state and 90% to the plaintiff. (The 10% to the state is needed to pay the young lawyer that prepared the files , prepared copies of documents, and interviewed witnesses.)
8) The state would then join with the plaintiff to collect the judgement. Since the state has access to information sources which the plaintiff might not have access to, this collection process should be speeded up.
9) Regarding counter claims, they would be allowed but they would not be allowed to be used as a way to force the case out of this special process.
10) Appeals would be allowed on the points of law raised by the govít young lawyer and points of law raised by the two parties at the hearing (See #6 above)
Advantages: 1) The process is much faster. It would probably take a case from filing to actual collection about be 9 to 12 months. 2) the cost to the parties would be very low (particularly if they chose not to hire their own attorneys), 3) the resulting collection of the judgements would be much more assured.
Of course, the Federal Constitutionsí provision that people are entitled to trial by jury might have to be waived as it is in small claims court already.
Note: Since this is an adaption of the civil system found in France & Germany, the state might consider hiring a former judge from one of these countries to come a serve for a year or to as an instructor for and/or consultant to the young govít lawyers and judges who will be implementing the system.
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