Academics and Research / News

New book calls for reform of nation’s civil court system

Rebecca Love Kourlis published "Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care" to help fix the country's civil court system.

Rebecca Love Kourlis, executive director the Institute for the Advancement of the American Legal System (IAALS), recently published Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care.

Love Kourlis recently answered a few questions about the book for DU Today.

You and IAALS have just published this book. What are the major themes?
Our civil court system has become increasingly eroded by sky-rocketing costs; inefficiencies in the way cases move to trial, or not; an overly politicized process for choosing and retaining judges; vanishing jury trials; and the slashing of court budgets. So the civil justice system is in jeopardy. Just as disturbing is the American public’s fundamental lack of knowledge about how courts work and how judges and lawyers are supposed to do their jobs. This misunderstanding contributes to distrust and cynicism about the civil courts rather than to solutions.

So, what specifically are the actual problems?
For example, let’s focus on civil lawsuits taking too long and costing too much. Imagine getting into an auto accident and then into a dispute over who was supposed to pay the damages. Whether you might be the plaintiff or the defendant, you will likely not want to take that case to court. You will pay more in court fees and costs than the car is worth — even if you drive a luxury vehicle!

Here is another statistic: Only 1 percent of cases actually go to trial. The rest are settled and those settlements are not necessarily based on merit but rather merely on the fact that one or both parties have run out of money. Further, the time it can take to resolve these disputes can stretch into years!

We recently heard from a young attorney who was waiting on a judge to make a decision on a motion for summary judgment in a civil case. The attorney got pregnant, had a baby, took maternity leave and then returned to work before the judge ruled on the motion. More than 18 months lapsed for just one step in the litigation process. These are just examples of cost and delay, and those problems are magnified by the fact that courts around the country are facing major funding cuts. This means divorce, foreclosure, personal injury and business cases go to the back burner because court offices must close early, have too few staff and are mandated to resolve criminal and juvenile cases first. The problems are real and very concerning.

How do we fix these problems?
Everyone has a role in the solutions. Judges must manage cases efficiently. This doesn’t mean they need to rush to judgment or skip over important procedures in the pre-trial and trial phases. But, they do need to nix unnecessary motions and continuances. They need to focus pre-trial discovery on the facts that matter and not permit unlimited and costly fishing through documents, emails, voicemails and text messages. Attorneys and judges must change the rules that govern civil cases so that they encourage efficiency rather than gamesmanship. And, legislators need to fund the system so that the judges have the time and staff to make these changes.

You also discuss how politics increasingly seeps into the judicial branch. What is the issue there?
Judges have an obligation to be fair and impartial. They are not supposed to care about which way the prevailing political wind is blowing, and they should never be beholden to anyone — especially someone who contributed to their campaign. Imagine if you entered a courtroom to resolve a civil dispute and you knew that the attorney representing your opponent had given the presiding judge a check but your attorney had not contributed to the judge’s campaign efforts. How could you trust that judge to adjudicate the dispute with impartiality? Citizens should be able to have a say in judicial elections, but these votes need to be based on a judge’s professional qualifications and experience. We at IAALS support a method for nominating, selecting, and evaluating judges that includes a commission composed of attorneys and citizen non-lawyers who nominate a small number of candidates. Then the governor appoints one of those candidates and that person serves a provisional term. During that term, the judge is evaluated (think of this as a report card for judges), and finally the judge appears on the ballot in a retention election — for an up/down vote. No opponent, no nasty mud-slinging, and hopefully, no need for any campaigning or fundraising. This process assures quality nominees for the bench, allows for a job performance evaluation and continues to give voters an opportunity to have a say about their judges. Furthermore, polling shows that citizens and businesses in states that use this system for choosing judges are more likely to trust their courts.

Who is the main audience for your book and what do you want that audience to take away from it?
The problems plaguing the civil courts are at a tipping point such that something must be done to address them. We want lawyers and non-lawyers alike to read the book and come away with an appreciation for the importance of courts, the urgency of solutions and a commitment to being part of those solutions. Once legislators begin to see that the judiciary is a core function of our democracy and not a discretionary social program to be cut from a budget, we expect states will refocus on the priority of funding courts.

Judges, lawyers and court administrators by the same token can and should look for ways to do their jobs more efficiently. They can search for innovative practices that give legislatures enough trust that the system is operating well. Judges and attorneys in numerous surveys admit there is a very real problem with cost and delay. Many are already championing reform efforts to make the civil justice system accessible, efficient and accountable. We have seen more citizens and legal professionals react with horror to the alarming results of high-dollar judicial campaigns. Increasingly, people are concerned about keeping cash out of courtrooms. And many of these same individuals — citizens, judges, and lawyers — are searching for ways to ensure that the process preserves impartiality and accountability. So we wrote the book as a call to action for everyone.

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