Special Section

How Can We Improve the Legal System?

Move It into the Information Age

By Roberta Reiff Katz

Roberta Reiff Katz, former general counsel of Netscape Communications Corporation and of McCaw Cellular Communications, Inc., is a member of the board of overseers of the RAND Institute for Civil Justice. She is the author of Justice Matters: Rescuing the Legal System for the 21st Century

While many Americans may believe their civil justice system no longer serves the average person, even the “well-heeled” dread going to court. Today, most companies assume an average lawsuit will cost hundreds of thousands of dollars in attorneys’ fees (not to mention the soft costs of employee time devoted to document requests and depositions), can take years to conclude, and may well lead to a result that has nothing to do with culpability.

Such attitudes toward the legal system are relatively new. Back in the 1950s, lawyers and courts were viewed more as noble defenders of justice (in the “Perry Mason” style). Why the change? Some blame lawyers, pointing to high hourly billing rates, the push to run practices like businesses, and the new, take-no-prisoners quality of lawyer behavior. Others blame judges and court administrators, noting case backlogs and decrepit facilities. Finally, many blame present-day society, arguing that it promotes a lottery mentality in which lawsuits enable plaintiffs to hit the jackpot. While there is some truth to all these claims, the legal system has a more fundamental source of dysfunction: The system can no longer process the volume and technicality of the information litigants bring to it.

Our legal system is based on an adversary system that has three elements: (1) the right of parties to present evidence to a judge and jury; (2) the need for the judge and jury to be “neutral and passive” (deciding only on the basis of the parties’ evidence); and (3) the use of procedural rules and professional codes of conduct to govern the collection, presentation, and testing of such evidence. While this is fairly common knowledge, it is more surprising to realize that our adversary system is the product of legal reforms begun in 18th-century England to meet the needs of an industrial age society experiencing new economic forces, urbanization, and a growing middle class.

The heart of our adversary system is evidence, and the heart of evidence is information. Thinking back to the 1950s, it is easy to see that information then was very different than it is today, both in quantity and character. Today, we are bombarded with vast quantities of information from multiple sources, including newspapers, magazines, radio, television, web sites, cellular phones, fax machines, and email. All these sources create information that can become evidence in a lawsuit. Computers and copiers add further to the volume of potential evidence; in the past, when documents were typed with carbon paper, they were shorter in length, and fewer copies existed.

Not only is there more information today, but the character of information has also changed. In particular, much of the information that the courts deal with today has become specialized. For example, while most lawyers and doctors were generalists in the 1950s, today every field and subfield has its own special vocabulary and methodology, which are not always understandable to outsiders.

Yet despite these fundamental changes in the nature of information, we continue to expect our adversary system to operate as before. We presume that the same basic procedures are sufficient to collect, to present, and to evaluate evidence, even when we know there are vastly increased amounts of evidence in almost any kind of civil case. We further presume that, no matter how complex or specialized the issues, any citizen qualified to be a juror is capable of fully understanding and evaluating the evidence.

AP/WIDE WORLD PHOTOS/   MARY ANN CHASTAIN   Amy Branigan looks through court records at the Greenville County Courthouse in Greenville, S.C. Greenville has piloted a program that links magistrates and judges to a private Intranet site with access to the 15,000 court records that pass through the county each year.

Such faulty presumptions have turned our adversary system partially on its head. Procedures that are intended to help bring the parties before the decisionmakers — the judge and jury — have instead become the tools that attorneys use to keep a case from ever reaching trial. One technique for ending a lawsuit before trial is to bury the other side in paper and electronic data. The need for high-priced experts to assist in interpreting specialized evidence can make the cost of a case prohibitive. The change in the volume and character of evidence is a key reason why trials drag on for months and even then do not always lead to just results. It is now commonplace for lawyers to hire jury consultants to help the lawyers win on the basis of style rather than substance, precisely because the evidence can be so difficult for a layperson to comprehend.

In fact, the fear of not being understood in the courtroom is a key reason why many companies turn to arbitration and mediation to resolve their disputes. Arbitration and mediation can address both the expertise issues and the cost concerns of litigants, and alternative dispute resolution is well suited to various kinds of disputes. Yet its wholesale use will render the common law, which depends on the evolution of court precedents, stagnant. And certain kinds of cases, such as securities class actions and mass torts, are better resolved in the courts.

To reinvigorate the adversary system, more than a tweaking is in order. The procedural rules and the professional codes require attention; for instance, the much-abused discovery rules should be thoroughly reviewed with the information age in mind. Changes to help the decisionmakers also are urgently needed; for example, judges and jurors need better ways to obtain unbiased education about hard-to-understand evidence. Neutral experts and even specialized classes could help. The use of more-specialized courts is another major reform to be considered. And, of course, the courts need to streamline virtually all their administrative processes through new communications and storage technologies.

The question that remains is, what role will the courts play? So far, one sees mainly isolated, piecemeal solutions, such as using electronic technology for case management, creating new rules to allow jurors to take notes and to ask questions, providing more subject-matter training for judges, and establishing a few specialized courts for commercial disputes.

Some groups, such as the National Center for State Courts — through its recently introduced Civil Justice Reform Initiative — are taking a more comprehensive approach that can lead to more-uniform results. These groups recognize that, just as the English legal system needed to be reformed for the industrial age, the American legal system also will have to change to meet the needs of the information age.