by Rebecca Love Kourlis and Dirk Olin. Golden, CO.: Fulcrum, 2012. 239pp. Cloth $16.95. ISBN 9781555915384.
Reviewed by Christopher P. Banks, Department of Political Science, Kent State University. Email: cbanks6 [at] kent.edu.
Although it is geared towards legal academy elites and practitioners interested in achieving reform, Rebuilding Justice is worth serious consideration for political scientists and students of courts. Under the authorship of two seasoned analysts of the civil justice system, its message is sent through the Institute for the Advancement of the American Legal System, a research center located at the University of Denver and whose mission is to advance the ideal of a more efficient, publicly accountable, and accessible civil justice system. While its subject matter addresses federal courts, most of what the book says is directed at state courts, forums that represent the bulk of judicial business in the United States.
Using anecdotal and empirical evidence from legal, social science, and media studies, Kourlis and Olin expertly describe the ills facing courts as they fulfill their core missions. Scholars of the judicial process know them well: high caseloads; increasing budgetary difficulties; the constraints of applying rapidly changing informational services and online capabilities; inefficient case management and lengthy delays in processing cases; limited transparency of judicial operations; reduced public accountability; limited access to courts; a hyper-utilization and abuse of procedural rules in the discovery process in adversarial litigation; and the politicization of judicial selection, especially in partisan judicial elections. They underscore their message with ample illustrations, ranging from a primer in the Appendix titled “Courts and Lawsuits 101” (showing the theory and reality of civil pleading and practice) to the cost inefficiencies of contentious divorces that take several years to resolve while incurring exorbitant attorney fees and litigation costs that “deplete family resources and leave the parties and their children in final ruin” (p.147).
The problems Rebuilding Justice tackles are best understood by the solutions it offers in its reform agenda. The proposals for change are normative and structural in nature, scope, and application. While some ideas are meant to raise the consciousness of judges, attorneys, and administrators, and thereby designed to alter cultural norms specific to the legal industry, many others are centered on the need to take the politics out of the judicial selection process or to enhance docket control, judicial administration, and citizen access or participation. In general, the book’s theme is if there is more judicial leadership and political independence to correct the ills of the system, civil justice can be reconfigured to address twenty-first century litigation demands by insuring that courts primarily serve [*280] citizens first by letting “every procedure [ be] designed for the person or party seeking justice: to facilitate just, speedy, and inexpensive access to an impartial judge and to a jury when appropriate” (p.192).
This vision can be accomplished by several changes to the status quo. For federal courts, partisan conflicts over appointments can be lessened if bipartisan commissions are formed to help the president and senators to fill vacancies at the trial and appeals court level; and, to institute strict time limitations to force an up-or-down vote to confirm nominees (p.35). For state courts, the problems generated by partisan elections, and the increasing role campaign cash, negative attack ads, and special interest group influence play in judicial elections, are overcome if states move towards adopting a selection plan that is championed by former Justice Sandra Day O’Connor (she also writes the book’s Foreword). Under the O’Connor Judicial Selection Plan – essentially a hybrid merit (Missouri) selection model – a commission of citizens and lawyers extensively vet judicial candidates in a style reminiscent of how the American Bar Association Standing Committee on the Federal Judiciary screens federal court nominees. Under the O’Connor plan the commission retains equal party affiliation and staggered terms in its membership; and, its deliberations and written work product are open to the public. The commission’s work produces a short list to the governor, who appoints the nominee to a term of years. After the term expires, a pre-election review of the judge’s performance on the bench is conducted and released for public consumption. At this stage surveys and data are collected from court users to measure judicial performance: attorneys, litigants, jurors, witnesses, court employees, law enforcement officials, and victims rate the judge by assessing judicial temperament, whether rulings are clear, and case management skills. Thereafter, a retention election is held, which represents the electorate’s judgment of judicial performance (pp.52-60).
Apart from judicial selection, Rebuilding Justice asserts its basic premise of strengthening public participation and judicial accountability by arguing against forced settlements and abusive discovery practices. Building its case for reform through historical references to framing intent and by outlining the pitfalls of contemporary legal norms and civil practice, Kourlis and Olin decry the vanishing civil trial in a modern age of burgeoning case filings, summary judgment motion practice, and alternative dispute resolution (ADR). As a result the book offers a vision of having adversary disputes resolved by the collective wisdom of juries in local communities. In doing so they dismiss claims that juries are too costly, biased (“run away juries”), ignorant, or largely disinterested in performing their civic duty. They also observe that the time and cost of using alternative dispute resolution techniques, like summary judgments or arbitration, is no different than empanelling a jury and having it deliberate to verdict. For the authors, moving away from pre-trial settlements allows judges to get back in the courtroom and prevents them from remaining isolated in chambers as a “managerial judge” beholden to process and wrongly attuned to getting the case off the docket instead of relishing the [*281] prospect of superintending a fully litigated adversarial contest (pp.68-76). In making these claims, the book suggests current legal practice and culture is paradoxically anti-trial and, as such, has its priorities backwards in destroying juries as a viable tool of justice or a time-honored and publicly respected legal institution. Simple fixes to enhancing the jury’s role – such as pre-instructing jurors on the nature of the case, allowing them to take notes and be active participants in the trial itself, and prohibiting jurors from using smart phone technology that would otherwise distract them in hearing a case – are thus not only possible to achieve, but fully warranted if the civil justice system is to work best (p.77).
A similar plea for enhancing civil justice is made to ending abusive discovery processes that drive up litigation time and expense. Three of ten chapters are devoted to the topic, signaling its importance in the book. Several major points are conveyed. First, Kourlis and Olin astutely remind us that in criminal cases the federal discovery process is governed by a single rule of procedure (Rule 16, Federal Rules of Criminal Procedure); this is intuitively more efficient and straightforward than the disclosure process in federal civil cases, which spans eleven different rules and thus provide more strategic reasons to use them oppressively as an adversarial weapon. One of the underlying goals of reform is to advocate for restructuring the rules to allow for only fact-based pleading (as in criminal cases, obliging prosecutors to alert the defense as to the underlying facts supporting probable cause to arrest and convict), instead of permitting notice-based pleading (as in civil cases, requiring only that parties give notice to opponents the nature of the dispute, in vague terms) (pp.92-93, 134-135). The upshot is that civil procedure fosters a zero-sum game that features an unlimited right of discovery in a world of limitless information. The effect is most harmful in civil cases that are increasingly dominated by computer technology and a never-ending search to find electronically-stored information (ESI) through e-discovery (p.95). E-discovery, and the relentless pursuit to find relevant ESI documents, is “one of the most profound changes on the litigation landscape” (p.95), and at the “heart of the modern-day lawsuit machine” (p.97). As such it is the engine driving sometimes astronomical levels of litigation costs, with temporary contract attorneys basis toiling endlessly at rows and rows of hard drives and keyboards , whose sole purpose is to search for discoverable material that is best located by those who are technologically savvy and “fluent in gigabytes and terabytes, native files and TIFF files, legacy data and metadata.” For the authors, e-discovery has become the stuff of “twenty-first century litigation” and, at least implicitly, represents at best a warped mechanism for achieving adversarial truth (pp.96, 106).
In identical fashion Rebuilding Justice adopts a metaphor to claim that civil justice today is built upon an antiquated rationale (formulated about 75 years ago) of simply allowing parties to exchange facts and information in a case, making it operate akin to a “Conestoga wagon on the information highway,” or one that is like a “canvas-topped relic bumping along in the Ethernet” (p.109). In simpler times, before routine transatlantic flight, the computer, email, and cell phones, the [*282] Federal Rules of Civil Procedure made sense as a bold model for analogous state rules of process because they embodied truth-seeking methods aimed at promoting uniformity among courts. Most importantly, they were designed to protect against “trial by ambush in the courtroom” (p.112). With the onset of modern class actions, mass torts, and civil rights litigation, after the 1970s the procedural tools of yesteryear lost their luster as civil process yielded endless fishing expeditions in discovery, which in turn spawned various attempts by courts to amend the rules and “put the discovery genie back in the bottle” with active case management reform that put special emphasis on the judge’s role in trying to control an unwieldy docket (pp.113, 115). The shift away from having attorneys control the pace of discovery and trials, and to instead force judges in the 1980s and 1990s to manage dockets proactively through pre-trial conferences, scheduling orders, and similar case management techniques, generated more rule amendments and congressional legislation that only served to confuse rather than enlighten. Thus more uncertainty in application was generated and, in turn, litigation cost and delay skyrocketed (pp.116-118).
The sorry state of civil discovery is the context for the main proposal Rebuilding Justice proffers as a reform principle. Specifically, 29 recommendations, each originating from the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System (IAALS, with whom the authors are linked), are collapsed into 14 generic ideas that collectively aspire to improve case management and to facilitate procedural reform at the ground level, provided all participants agree to cooperate with each other to share information earlier. The thrust is that with early and open disclosure in cases, parties can resolve the types of procedural bickering and delay that ultimately slows the down the administration of justice and makes it easier for judges to enforce the rules fairly and efficiently (pp.136-140). While these thoughts have a certain pie-in-the-sky feel to them, they make sense insofar as they represent specific directives that Kourlis and Olin claim are needed to improve civil justice: 1) to encourage judicial districts to be innovators in designing the rules that work best in the type of cases the courts therein usually face (the “proportionality” principle, which says that every case should not dictate similar uniform procedural responses); 2) to adopt fact-based instead of notice-based pleading; 3) to encourage litigators to disclose key documents and witnesses early on in the case, and limit discovery thereafter to what only is necessary to support claims or defenses; 4) to return the discovery process to its original function of being simply a means to an end (rather than the sole purpose of) securing requisite information; and, 5) to make only one judge handle a case from start to finish, with a firm hand on the wheel in managing motions and trial deadlines (pp.136-137).
Beginning with two rather oddly placed chapters at the end of the book, the concluding section of Rebuilding Justice details the problems of divorce litigation and, subsequently, the perspectives of three trial and appellate judges who deal with dysfunctional civil litigation. Two additional advocacy points emerge in these chapters. The first relates to the wisdom of adopting a therapeutic, or [*283] problem-solving, approach to divorce litigation, in part because the way in which these cases are handled now only thwart the best interests of parents and children who are struggling with issues of separation, parental custody, the high cost of attorneys fees, and vanishing family money. The second pertains to judges and court administrators who show the type of judicial leadership and innovation in the courtroom that generates the type of ideal courtroom culture that the authors wish to develop in the future: a user-friendly, customer-first style of justice that, if implemented, would strengthen public respect for courts. These arguments, as well as others that are reiterated throughout the book, are distilled in the last chapter which advocates for the creation and implementation of “citizen-centric courts,” or judicial forums that cater to the needs of the citizen wishing to take advantage of what courts ought to strive to do best, which is to deliver timely, fair, and efficient civil justice.
For social scientists Rebuilding Justice may be significant as a primer, lens, or a bird’s eye view of what ails the civil justice system rather than being a viable template for a reform package. The legal academy might see it differently, if only because judges and attorneys are most likely acutely aware of the system’s infirmities; if so, they might be more vested in trying to fix them. At least one could surmise that trend is happening because the authors assert that “[c]hange is inevitable” given the U.S. Judicial Conference considered in May 2010 an overhaul of civil justice rules and judicial administration (p.131); and, “other countries have done it,” led by civil justice reform in England and Wales, Canada, and some U.S. states, like Arizona and Oregon, are recommending or enacting such change (pp.133-135). These initiatives, Kourlis and Olin continue, led to the American College of Trial Lawyers and the IAALS to be “at the forefront of this movement” of reform via the 29 recommendations discussed earlier (p.135).
Still, defenders of the status quo may question some of the reforms. In regards to state judicial selection methods, for example, reform trying to depoliticize judicial commissions (by using bipartisan membership and a balance of citizens-lawyers), and to increase public transparency and judicial accountability (by using judicial performance measures before retention elections), are worthy aspirations; yet, it is highly uncertain at best if they are going to work, simply because politics will always be a part of judicial selection designs, even hybrid merit systems. One could assert that the O’Connor plan judicial selection is likely to remain tied to partisanship since the governor (for non-attorneys), and other key stakeholders in the legal system, namely the attorney general and chief justice of the supreme court in conjunction with the governor (for attorneys), appoint who sits on the commissions (pp.52-53). Using judicial performance evaluation is more promising; still, the cost of conducting evaluations in tight budgetary times, and the stark reality that the voting public is unlikely to absorb the information provided because of apathy or other reasons, may counter the intended effects of reform. Furthermore, the selection plan cannot completely solve the issues raised by special interest group involvement and increased campaign spending in the wake of Republican Party v. White (2002) and [*284] Citizens United v. FEC (2010). Both U.S. Supreme Court rulings value the constitutional interests of facilitating free speech and greater spending in elections over countervailing goals of stopping the corrosive effect of money in judicial elections that are looking more and more like political campaigns, especially at the appellate level. This latter point is acknowledged indirectly by Kourlis and Olin since they observe that campaign finance reform, public financing of judicial campaigns, and stricter recusal standards, are ancillary “palliative measures” necessary to enact meaningful reform (p.59).
Critics of the book might also state that the reform desired is little more than simply an appeal to common sense. Put differently, the book adds nothing by claiming that civil justice will be greatly improved if all judges and lawyers got on the same page and cooperated with each other to expedite the docket through firm and active case management styles, or that all is better if everyone agreed in front of a case about what needs to be disclosed at the discovery stage under mutually-agreed and self-enforced timelines. The devil is in the details, the argument would go, and Rebuilding Justice could be faulted by naysayers who might complain that the book is long on describing the problems but short on providing meaningful or specific solutions that are feasible. To illustrate, after declaring that civil courts are not committed enough to the principle of putting citizens first as a matter of “customer service,” Chapter 10 asks “Why are citizens not then at the center of every equation, every decision?” (p.187). The answer that is given is first implied by getting the reader to imagine judges that are “highly capable, fair, efficient, and well-respected”; and courtrooms that are keeping records electronically and which are fully accessible, where “the public is welcome”; and “where individuals, businesses, and government entities all trust that their cases will be heard promptly and decided justly” (pp.187-188). As one would expect, the hypothetical thought process will only become a reality if citizens begin to value courts; if courts are properly funded; if jury trials are brought back into vogue; if merit instead of politics drive judicial selection; and so forth (pp.188-189). All of these reform goals, they claim, are capable of being achieved if more efforts are made in reform-minded courtrooms to implement them, as in: 1) Oregon, which is in the midst of a pilot project to get civil cases to trial, with limited discovery, in four months (p.191); or, in 2) Arizona and Utah, whose courts “host websites that provide information about the court’s ratings on a measurement system designed by the National Center for State Courts” (p.191); or, in 3) Indiana, where one court is “citizen-centric” by taking the initiative to send out notices to debtors in foreclosure cases to alert them that they could mediate the dispute (pp.191-192).
Undoubtedly these examples underscore that reform is worth pursuing in some respects; but it remains an open question if federal or state courts are motivated to the point of uniformly getting behind the rationales for changing the civil justice rules in the wholesale fashion that the IAALS demands. In some ways, doing so would fly in the face of allowing at least state courts the flexibility to undertake the pilot projects for innovation and change that is ultimately [*285] desired, relative to specific courts willing to take the plunge. Also, it is plausible to interpret that the reform that is envisioned (such as to move towards fact-based pleading, or one specific type of merit-based judicial selection system) would require federal and state judicial administration to synchronize their efforts which, paradoxically, necessitate a lock-step response towards the uniformity of judicial procedures that the authors appear to criticize, and which are the impetus for changing the system in the first place. In this sense, the book may be more effective in making a plea for a change in collegiality among legal professionals who realize that civil justice is broken and need to fix it by cooperation in how they manage or apply existing rules, even if they are defective and out-dated. As the authors themselves note in discussing the implications of their reform principles, “[o]ther changes, though more complex and requiring broader cultural and systemic reform,” lead to a “clear conclusion: efficient case processing is most likely to occur where the local legal community – steered by the expectations and leadership of the judiciary – embraces (or at least accepts) strong case management” (p.140). In this light, the authors hit on the central problem of trying to effectuate any type of reform: there must be consensus and drive by the stakeholders to want to alter the prevailing legal landscape with an understanding that it will take much time, effort, and money. The impracticality of implementing comprehensive reform, then, may only mean that the system can be changed by the ones who actually use it and who committed to fixing it in their own daily practices, assuming they agree with the principles of reform the AALS embraces.
To be sure, the examples of what reform might look like in specific courts are insightful, especially if the type of visionary administrator the book admires is in place and at the helm to implement the requisite changes. Yet, while Rebuilding Justice is surely correct by insisting that there must be a firm commitment by the legal profession to enact reform, for some observers the proposals can only be perceived as correctives that are somewhat wistful ideals. Few would argue that proactive steps must be taken by all courts to overcome their problems as they work to deliver civil justice; and, courts attentive to the problems of delay, cost, and access surely already understand that they must do a better job in delivering on the promise of providing responsive civil justice. Improving judicial administration in any day and age is an ongoing and necessary objective for complex judicial bureaucracies that have to make do with less in constrained but prevailing political environments. For these reasons courts today are probably working hard to effectuate the type of steps that are featured as success stories in Rebuilding Justice. Most courts tinker with their local rules of procedure to determine what works in any given jurisdiction. Many chief judge administrators realize at some point that they have to crack the whip on their colleagues to end discovery abuses. The movement to adopt therapeutic or problem-solving trial courts in appropriate areas (e.g. drug, mental health, family cases) is continuing apace across the country. And all one has to do is compare what court websites looked like a decade ago to what they can do [*286] today in reaching out to the public and becoming more user-friendly with better IT solutions in constrained budget environments. In the end, perhaps the true strength of the book is to alert and educate the legal community (and social scientists studying it) about what the core problems are in the delivery of civil justice. Its best pedagogical use, for legal professionals and social scientists alike, is for it to be a cogent and powerful reminder of what courts could do if they operated well; and, arguably, that aspiration might be achievable if courts seriously begin to operate with the type of reform the authors have in mind. Still, that is a lot of “ifs,” and critics of Rebuilding Justice are likely to remind court watchers that the book’s bark may well be bigger than its bite.
Citizens United v. FEC, 558 U.S. 50 (2010).
Republican Party v. White, 536 U.S. 765 (2002).
Copyright by the Author, Christopher P. Banks