The Judicial Branch Mess

Today's Federal court system has become an aging edifice that decades ago lost touch with those it was supposed to serve, and the taxpayers who fund it. 

It is well-known that starting in the 1960s, Federal judges appointed themselves the arbiters of all things fair and good.  Few are aware, however, that it was the Federal rules of procedure for civil suits, first adopted in 1938, which, when combined with the combustible additive of 1960s activist jurisprudence, produced the morass litigants must now confront the moment they enter the so-called "halls of justice."

Prior to the adoption of the Federal rules, litigation was subject to highly technical procedural rules, some of which arose as a result of practices dating back to the Middle Ages.  Though substantial progress was made in the 19th century to sweep away the vestiges of this past, those efforts soon enough became outdated.

In 1938, the Federal judiciary concluded that a modern, uniform and less technical set of rules was needed to govern the prosecution of civil lawsuits in Federal courts nationwide.  The new rules, which became law through an act of Congress, ushered in what was became known as "notice" pleading.  Simply put, this meant that magic buzzwords and phrases of ancient origin were no longer required to state a viable claim .  It was enough for a newly-filed lawsuit to put the defendant on notice through the use of ordinary verbiage of what he or she was being sued for, and the relief being sought by the plaintiff.  Other rules were promulgated to enable defendants to delve more deeply into a plaintiff's case, to ascertain if there was any "there" there. 

This all made sense at the time.  The Federal rules rationalized and streamlined what was a mystifying process to nonlawyers and some lawyers, alike.  In fact, for this same reason, most states eventually replaced their own antiquated rules with a new set, of procedural rules patterned after the Federal rules.  But what the rules' drafters did not anticipate was the degree to which Federal courts decades later would open their doors to all manner of formerly unknown and unimagined causes of action.  Although modernity and urbanization explain some of this, the trend was exacerbated tenfold by the development in the 1960's of a "victimization" mentality, i.e. the belief that if someone perceived that he or she had been wronged, a legal remedy had to be made available to redress that perception, irrespective of whether a wrong, or an actionable wrong, had actually been committed.   Soon enough, "notice" pleading and the Federal rules became a time bomb, that caused the filing of lawsuits far beyond the capacity of court systems to handle them.  While the ancient, technical buzzwords and phrases were long gone, they were replaced by the use of Pavlovian language attorneys recognized would trigger emotional rather than rational consideration of their clients' complaints.  Ample proof of this came to the public's attention a few years ago, when a District of Columbia administrative judge filed a $54 million suit against his drycleaner for "mishandling" a pair of pants.  That suit was filed in 2005.  It took over three years of court time and taxpayer funding to conclude.  Pearson v. Chung, 961 A.2d 1067 (D.C. 2008). 

Not to be outdone, starting in the 1960s Congress enacted law after law aimed at the amelioration of as many of life's risks as it could conjure up in its collective imagination.  The courts unreflectively validated these laws, with each generation of jurist handing off to the next generation the ticking time bomb that these laws, and the courts themselves through their rules, created.    

Eventually, the Supreme Court sought to put the brakes on what had become an out of control train.  In 1985, it ruled that junk science would no longer be acceptable in the courtroom.   See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).   In so ruling, the Court effectively acknowledged that prior to that, a plaintiff was permitted to file, and prosecute to judgment, a claim premised on scientific principles and conclusions the validity of which were on a par with alchemy.  And in 2007, in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the high court undid a decision its predecessors rendered half a century earlier, which allowed a plaintiff to file suit premised on pure speculation about whether there existed facts which, if discovered, would validate his or her claims.  Given the rising cost of litigation, fueled in large part by the sequence of events discussed above, many bogus suits were settled long before the plaintiffs even had to make a preliminary showing that they could back up their charges.

In 2000, the Federal court system itself finally got around to changing one of its key discovery rules, rules that were drawn up to permit parties to "discover" the factual basis for claims and defenses raised in their respective pleadings.  See, In re: Cooper Tire & Rubber Co., 568 F.3d 1180 (10th Cir. 2009).  As is alluded to in the fourth paragraph of this piece, these rules were drawn up to address the new regimen created by "notice" pleading.  Though discovery became the means by which a defendant could fill in the blanks of a plaintiff's complaint, the central discovery rule at issue invited both plaintiffs and defendants, or entrepreneurial attorneys, to turn molehills into mountains.  It authorized discovery into the entire subject matter of an event or transaction upon which a plaintiff based his or her claim or defense, rather than the specific claims and defenses specified in the parties' pleadings.   Parties were thus encouraged to go on "fishing expeditions," to discover anything that they might dredge up and use to inject new claims and defenses into the ongoing litigation.  It is hard to imagine a more facile mechanism for enriching attorneys at the expense of their clients and taxpayers, or a more likely source of disputes that, in and of themselves, caused litigation to drag out for months or years more than they should have. 

The earlier version of this discovery rule fostered as much abuse and litigation as information useful to one party or the other, and so, its scope was finally scaled back.  But this was too little and too late.  In fact, notwithstanding the change, many lawyers and judges who came to the law prior to 2000 continue to approach cases today as if the rule at issue had never been amended.  And there is virtually nothing a litigant can do about it. 

Because nothing had worked to stem case filings and accompanying delays in cases reaching trial, the courts eventually tried out a new gimmick.  They started to impose compulsory, nonbinding mediation on parties, ostensibly to facilitate the settlement of more suits, so that they could be taken off the courts' clogged trial dockets.  In reality, this has failed to result in a significant number of settlements.  What it has done is add to parties' pretrial legal costs.  Courts won't do away with mediation, however, despite staff time and expense devoted to the process, because the judicial mindset is that the more hoops litigants are required to jump through before a case must be tried, the sooner they'll get frustrated worn out, and head for the exit. 

Courts, like all bureaucracies, protect their turf and are adverse to change.  They will never reform themselves.  History proves that.  All their fiddling around does nothing more than rearrange the deck chairs on the proverbial Titanic, notwithstanding the fact that the other passengers, both litigants and taxpayers, are also on board and headed down with the ship.  Because courts are funded primarily through taxpayers' dollars, and are creatures of statute, serious change will have to come from Congress and state legislatures.  That's tough, of course, because they helped create the problem in the first place, and have shown little interest in addressing these problems.

So it is up to taxpayers decide that the hammer must be brought down on such judicial and legislative profligacy.  With so much red ink pervading Federal and state balance sheets, this is as good a time as any to focus a spotlight on this least understood of the three branches of government, and its accomplices in the legislative branch.
Today's Federal court system has become an aging edifice that decades ago lost touch with those it was supposed to serve, and the taxpayers who fund it. 

It is well-known that starting in the 1960s, Federal judges appointed themselves the arbiters of all things fair and good.  Few are aware, however, that it was the Federal rules of procedure for civil suits, first adopted in 1938, which, when combined with the combustible additive of 1960s activist jurisprudence, produced the morass litigants must now confront the moment they enter the so-called "halls of justice."

Prior to the adoption of the Federal rules, litigation was subject to highly technical procedural rules, some of which arose as a result of practices dating back to the Middle Ages.  Though substantial progress was made in the 19th century to sweep away the vestiges of this past, those efforts soon enough became outdated.

In 1938, the Federal judiciary concluded that a modern, uniform and less technical set of rules was needed to govern the prosecution of civil lawsuits in Federal courts nationwide.  The new rules, which became law through an act of Congress, ushered in what was became known as "notice" pleading.  Simply put, this meant that magic buzzwords and phrases of ancient origin were no longer required to state a viable claim .  It was enough for a newly-filed lawsuit to put the defendant on notice through the use of ordinary verbiage of what he or she was being sued for, and the relief being sought by the plaintiff.  Other rules were promulgated to enable defendants to delve more deeply into a plaintiff's case, to ascertain if there was any "there" there. 

This all made sense at the time.  The Federal rules rationalized and streamlined what was a mystifying process to nonlawyers and some lawyers, alike.  In fact, for this same reason, most states eventually replaced their own antiquated rules with a new set, of procedural rules patterned after the Federal rules.  But what the rules' drafters did not anticipate was the degree to which Federal courts decades later would open their doors to all manner of formerly unknown and unimagined causes of action.  Although modernity and urbanization explain some of this, the trend was exacerbated tenfold by the development in the 1960's of a "victimization" mentality, i.e. the belief that if someone perceived that he or she had been wronged, a legal remedy had to be made available to redress that perception, irrespective of whether a wrong, or an actionable wrong, had actually been committed.   Soon enough, "notice" pleading and the Federal rules became a time bomb, that caused the filing of lawsuits far beyond the capacity of court systems to handle them.  While the ancient, technical buzzwords and phrases were long gone, they were replaced by the use of Pavlovian language attorneys recognized would trigger emotional rather than rational consideration of their clients' complaints.  Ample proof of this came to the public's attention a few years ago, when a District of Columbia administrative judge filed a $54 million suit against his drycleaner for "mishandling" a pair of pants.  That suit was filed in 2005.  It took over three years of court time and taxpayer funding to conclude.  Pearson v. Chung, 961 A.2d 1067 (D.C. 2008). 

Not to be outdone, starting in the 1960s Congress enacted law after law aimed at the amelioration of as many of life's risks as it could conjure up in its collective imagination.  The courts unreflectively validated these laws, with each generation of jurist handing off to the next generation the ticking time bomb that these laws, and the courts themselves through their rules, created.    

Eventually, the Supreme Court sought to put the brakes on what had become an out of control train.  In 1985, it ruled that junk science would no longer be acceptable in the courtroom.   See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).   In so ruling, the Court effectively acknowledged that prior to that, a plaintiff was permitted to file, and prosecute to judgment, a claim premised on scientific principles and conclusions the validity of which were on a par with alchemy.  And in 2007, in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the high court undid a decision its predecessors rendered half a century earlier, which allowed a plaintiff to file suit premised on pure speculation about whether there existed facts which, if discovered, would validate his or her claims.  Given the rising cost of litigation, fueled in large part by the sequence of events discussed above, many bogus suits were settled long before the plaintiffs even had to make a preliminary showing that they could back up their charges.

In 2000, the Federal court system itself finally got around to changing one of its key discovery rules, rules that were drawn up to permit parties to "discover" the factual basis for claims and defenses raised in their respective pleadings.  See, In re: Cooper Tire & Rubber Co., 568 F.3d 1180 (10th Cir. 2009).  As is alluded to in the fourth paragraph of this piece, these rules were drawn up to address the new regimen created by "notice" pleading.  Though discovery became the means by which a defendant could fill in the blanks of a plaintiff's complaint, the central discovery rule at issue invited both plaintiffs and defendants, or entrepreneurial attorneys, to turn molehills into mountains.  It authorized discovery into the entire subject matter of an event or transaction upon which a plaintiff based his or her claim or defense, rather than the specific claims and defenses specified in the parties' pleadings.   Parties were thus encouraged to go on "fishing expeditions," to discover anything that they might dredge up and use to inject new claims and defenses into the ongoing litigation.  It is hard to imagine a more facile mechanism for enriching attorneys at the expense of their clients and taxpayers, or a more likely source of disputes that, in and of themselves, caused litigation to drag out for months or years more than they should have. 

The earlier version of this discovery rule fostered as much abuse and litigation as information useful to one party or the other, and so, its scope was finally scaled back.  But this was too little and too late.  In fact, notwithstanding the change, many lawyers and judges who came to the law prior to 2000 continue to approach cases today as if the rule at issue had never been amended.  And there is virtually nothing a litigant can do about it. 

Because nothing had worked to stem case filings and accompanying delays in cases reaching trial, the courts eventually tried out a new gimmick.  They started to impose compulsory, nonbinding mediation on parties, ostensibly to facilitate the settlement of more suits, so that they could be taken off the courts' clogged trial dockets.  In reality, this has failed to result in a significant number of settlements.  What it has done is add to parties' pretrial legal costs.  Courts won't do away with mediation, however, despite staff time and expense devoted to the process, because the judicial mindset is that the more hoops litigants are required to jump through before a case must be tried, the sooner they'll get frustrated worn out, and head for the exit. 

Courts, like all bureaucracies, protect their turf and are adverse to change.  They will never reform themselves.  History proves that.  All their fiddling around does nothing more than rearrange the deck chairs on the proverbial Titanic, notwithstanding the fact that the other passengers, both litigants and taxpayers, are also on board and headed down with the ship.  Because courts are funded primarily through taxpayers' dollars, and are creatures of statute, serious change will have to come from Congress and state legislatures.  That's tough, of course, because they helped create the problem in the first place, and have shown little interest in addressing these problems.

So it is up to taxpayers decide that the hammer must be brought down on such judicial and legislative profligacy.  With so much red ink pervading Federal and state balance sheets, this is as good a time as any to focus a spotlight on this least understood of the three branches of government, and its accomplices in the legislative branch.