In a recent survey of lawyers, 85 percent said only those with substantial courtroom experience should be chosen as judges. Fifty-seven percent of the respondents thought judges did not like taking cases to trial.
It is well established that taking a civil dispute to trial rarely happens anymore. This is a major problem for society, the profession, and the judiciary.
The American College of Trial Lawyers’ report on “the vanishing trial,” citing law review articles, states, “First and foremost is the inordinate expense and delay of the American civil process. … We thus have increasingly designed our system to provide incentives, including delay, that drive almost all to settle.”
From a procedural standpoint, progress is being made to preserve our civil trial system from extinction, including the proposed amendments to the Federal Rules of Civil Procedure many hoped would be effective this year. On the state level, the Conference of Chief Justices created a civil justice initiative from which have come many pilot projects in several states. It is now recognized that this is a problem for all of American society, as discovery delays and expense are a big part of the denial of access to justice. Thus, cases are not even getting filed.
From a legal professional standpoint, individuals interested in being trial lawyers are reduced to pleading and discovery experts. From a judicial standpoint, applicants are blocked from getting the qualification of “substantial courtroom experience.”
From a procedural standpoint, progress is being made to preserve our civil trial system from extinction.
Procedural changes alone, without a change in the culture and mentality of the practicing bar, will not yield the desired result. Studies have identified four essentials to spawn a renewal of public faith in the court system: make trials more efficient, less costly, more accessible, and more just. We also need a sense of urgency.
There are many pilot projects worthy of consideration. An example is Iowa Rule of Civil Procedure 1.281, an expedited civil action rule for actions involving $75,000 or less in money damages. The new expedited civil action rule includes limits on discovery and summary judgment motions, an expedited trial, and limitations on the length of the trial. The Iowa Supreme Court also adopted a package of discovery amendments that include initial disclosures, limitations on the frequency and extent of discovery, a discovery plan, and an expert report requirement.
Wisconsin should consider following Iowa’s lead, by adopting a similar rule.
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