Menkel Meadow Article on Civil Justice Sytem PDF

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My summary on Menkel Meadow's article on Civil Justice System...

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Introduction: -

The ‘vanishing trial’ -

The increasing rarity of a full-blown civil trial, with juries deciding questions of fact and judges deciding and instructing on questions of law.

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Many lament the diminishment of dramatic verdicts being announced to reflect the democratic functions of the constitutionally sanctioned peer decisions of juries and the triumph of battles of adversarial lawyers, presided by judges who keep the proceedings fair, if substantively untouched

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The phenomenon is denounced by prominent judges, lawyers and legal scholars i.

Some possible explanations: -

Increased criminal trial which often requires ‘speedy trial’ resolution and often results in guilty pleas

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Enormous expense of mounting a full-scale trial -

Including increasingly prohibitive attorney’s fees, expert witness fees, discovery costs

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Time lost in litigation

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Uncertainty of court outcome and liability ranges

The advent of various processes of ‘alternative dispute resolution’ have removed many cases from the civil and criminal trials dockets and sent them to a black box of secrecy, specialised procedures and ‘private justice’ which is antithetical to the system of public adversary and adjudicatory justice.

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There is a suggestion that they are losing transparency in public law-making functions, causing lawyers to fall into patterns of disuse in the use of their litigation skills, failing to produce important contests of competing values and claims.

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The losing ability of public trials to create and enforce laws and legal rules on the rest of the society, in a common law system of law-making as well as interpretation.

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These claims have historical, empirical and normative significance for legal actors. i.

Is it true that there are fewer trials than in the ‘golden age’ of adversarial litigation

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Even if it is true, is it necessarily a bad thing that we have fewer trials, even when the data suggests that, there are greater numbers of

conflicts and disputes, including greater number of cases formally filed in courts, as well as those never field in official dispute resolution settings. -

Must deal with the disputes and conflicts in other ways

She suggests that the demise of the adversary system of trial is a continuing evolutionary development of the Anglo-American legal system. i.

It makes more sense to learn what we can about ourselves, as lawyers, citizens and disputants from these changes in procedure and process. Than lament the past

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We are now in a time of transition away from trial by the ‘ordeal’ of court, though it may not be quite clear that we are moving uniformly toward ‘private’ trials or other legal events for the resolution of our disputes with each other.

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If litigants and their lawyers are choosing other processes, we must examine why and observe, if we can, the evolutionary picture of why we are moving to new roles and new institutions and what values these new roles and institutions might serve.

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If litigants and their lawyers are choosing other process, we must examine and observe, the evolutionary picture of why we are moving to new roles and new institutions and what values these new roles and institutions might serve.

A very Brief History of Anglo-American Legal Process -

The “Big Bang” in American Legal process a. The adoption in 1938 of the Federal Rules of Civil procedures, marking radical changes in the adversary system by introducing ‘trial by discovery’ and no longer ‘trial by surprise’ b. The rapid growth of class actions and multiple party lawsuits, increased role of science and expert witnesses in legal decision-making, use of sanctions to police lawyer behaviour and reduction of jury trials c. Increased settlement rate (and non-adjudicatory resolutions of both civil and criminal cases)

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The evolution of human legal procedure may not be linear but cyclical a. Violence and self-help -

Also a great deal of dispute avoidance

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Socio-legal scholars: William Felsitner, Austin Sarat, Richard Abel have said that we must perceive an injury (name it’), attribute fault to

someone other than ourselves (‘blame’ someone) then find a form where the pain can be heard and remedied (‘claim’ against someone for something) -

When two parties had a dispute with each other, they sought assistance from a third party. -

This form of a ‘triad’ is almost universal according to legal historians and anthropologists, whether the third part acted to decide and compel or to conciliate and seek consensus is not so universal

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In Roman practice, parties had to agree on both the norms to be applied to their dispute and the judge to decide the issues or the dispute could not proceed in juridical channels -

This put the ‘loser’ in the position of having chosen both the rule and the person responsible for his ‘loss’ and is a form of consensual, if decisional, justice

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Consent within compulsion is so strong that early English law was focused on ways to compel parties to attend legal proceedings because of an early belief that to adjudicate without the presence of an accused wrongdoer was unfair and unjust.

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In the sixth century, Christian church practices supplanted what would be considered both secular and more ‘spiritual’ forms of dispute resolution -

It is also when English legal history begins, as the first written records of codes and laws date from then.

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There is evidence of fixed rules (fixing of ‘blood money’ in graduated scales of penalties in lieu of more violent, revenge of blood feuds) attributed to the teaching of the Christian church that mercy and ‘penitentials’ were better than on-going feuding (and feudal.futile) violence.

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Decision-makers were often combinations of secular (kingsmen or royal representatives) and spiritual leaders (high-ranking Church officials)

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There was also some evidence of ‘process pluralism’ in that there were choices about proceeding in adjudicative or arbitrated fora and third part decision makers often encouraged post-decisional settlement negotiations before decisions were formalised

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Some legal historians have suggested that in present times, important public and political matters were dealt with in public fora and business, transactional and some property matters were more likely to be dealt with in private

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Whatever the law,humans began to recognise that some “orderly” process was better than unrestrained violence and escalation of individual disputes to more dangerous group and trial fights

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In 1215 the Lateran Council prohibited clergy from participating in ordeals.On the civil side,oath swearers ,neighbours and supporters of claimants shifted from “witnesses” to the first juries who actually found facts and decided matters on the basis of their knowledge of the parties and facts arising before the dispute.

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By the 14th century ,jurors had become fact finders and were required to reach a verdict unanimously.

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As political “unification “formalised governance,the Kings court also became a source of profit for the royal coffers ,both in criminal and civil case fees.

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The Anglo-American legal system, then,was constituted by evolving professionalisation of lawyer,solicitor and barristers,the growing passivity of judges ,the changing roles of fact witnesses and what many argued about the jurisprudence of truth.

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Lord Langbein has recently described the process by which the active role of adversarial attorneys began, following the abuses of the 1680’s Treason Trials,as high placed and wrongly accused “victims”successfully demanded more active counsel and protection from their own representatives than they were receiving from the Kings judges who were supposed to be protecting them.

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By 1730 judges began allowing defence attorney’s in ordinary felony cases to cross examine witnesses

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Lord Langbein attributes this “professionalisation of the lawyers in English criminal prosecution to the rapid urbanisation of London and communitarian.

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With the use of a professional breed of prosecution lawyers an obvious imbalance existed which led to the practice of allowing defence solicitors.Lord Langbein argued that the British trial had become an overly ‘lawyerised’ procedure in which the accused gradually stopped speaking in his own defence and the lawyers took over case preparation ,examination and argument.

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The purpose of a trial became a system of ‘probing the prosecution's case while the judges became increasingly passive in ascertaining legal guilt if not truth.

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As the jury evolved from 12 men who knew the parties and did not find facts but decided on the basis of prior knowledge of the parties and their communities ,to a more neutral body of individuals ,the trial itself became more focused on proof of

facts, evidence and its rules, and argument about the application of those facts to an evolving set of rules of law. -

In the UK the jury began its decline in the 1850’s ,after the First World War ,prohibitions on civil jury service effectively eliminated the use of lay decision makers in all civil matters but slander and libel and a few other matters.

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The move away of the juries in the UK and their continual use in the United States is important,but the criticisms of the law practice in the United States has not been seen as strong as the UK because of the quality of argument and adversarial behaviour.

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Whilst historians and procedural scholars continue to argue about the Anglo-American justice ,the last few decades have been characterised by the growing criticisms of its use.

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There have been efforts both to reform the adversarial process and to supplement the formal adversarial processes with growing recognition of new processes to resolve human and local disputes.

The Current Adversary System: Trials, Hybrids, and Process Pluralism ●

Critiques are mounted against the adversary system from a variety of perspectives. ○

We have too much adversarialism-the growing incivility of lawyers and clients to each other. In the United States there is the debate about whether there is 'a litigation explosion' (too many cases, too much legal disputing?).

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There is also criticism of the high costs and delay of overly litigious practitioners

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There is expressed worry about the creeping notion of 'adversarialism' in all legal and regulatory matters and, there is growing attention to the inability of polarised 'winner take all' outcomes in lawsuits to deal with modern multi-party and multi-issued legal and social problems.

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There is also grave concern about whether the modern adversarial judicial process can accurately find facts, whether simple factual contests of 'what happened', or more technical disputes about scientific causation and attribution of blame (if truth is indeed the goal of our system).

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Some argue that truth and accurate fact-finding are not the ultimate goals of our system, but rather the protection of individual and human rights, especially against the state in criminal cases.

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Critics of the adversary system from 'the other side', those defenders of Continental and more 'inquisitorial' systems, suggest that if truth is the goal of

any legal system, our adversarial practices (as defined by active lawyers and passive judges) have failed to produce the more accurate fact-finding where there is more active magisterial behaviour and less 'argumentative' lawyer behaviour. ●

Truth is not produced when two sides seek 'victory', rather than truth.

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As many critics have noted, we don't decide scientific disputes or issues by two-sided arguments, but rather by a rigorous scientific method that includes various falsifiable hypotheses, subjected to rigorous and replicated study.

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The adjudication of competing rights' may be necessary in some cases, but often these days, both sides or many sides may have 'rights' that are equally valid (consider child custody as an example) and one right may not completely trump another.

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A more recent complaint is that we do not have enough adversarialism-to wit, the ' vanishing trial', with too much legal decision-making and dispute resolution occurring in private.

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Many legal scholars have decried the disappearing public trial as providing insufficient public opportunities for direct confrontation about important issues Scholars and judges are also concerned that an inadequate number of precedents is being produced to guide the development of the common law and society's behaviour, and lawyers and judges will lose their important skills at trying and deciding cases if there is so much disuse of our centuries-old trial mechanisms.

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However, just as many scholars have complained that overextension and overuse of the adversary model in other governmental fora-the tribunals and the administrative state as well as in society's other basic institutions, journalism, politics, and education, to name a few, has 'infected' the way in which we conceptualise all problems to have only two sides and that everything can be decided by argument, evidence, and proof adduced by two competing sides.

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This 'sporting' theory of justice, decision-making, and human interaction has only increased the likelihood of escalating conflicts, thinking of compromise as 'weakness', and, in my view, decreased our ability to focus on more creative, non-binary solutions to human social and legal problems.

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Why are we turning to some other forms of legal procedure to correct for or avoid these flaws; what are these other forms; what are their functions and limits, as well as advantages; and how should we behave in them?

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Professor Sander recoined the words of a noted civil procedural scholar in the United States, Maurice Rosenberg, to suggest that the ' forum should be fitted to the fuss'.

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ADR scholars (and practitioners), like myself, can describe these processes on a variety of analytic dimensions.

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Stuart Hampshire comes closest to continuing to justify our conventional conception of adversarial justice by suggesting that after a lifetime of study he has given up on the idea that we will ever really have consensus on substantive justice or the 'good'. Instead, he suggests, we are more likely to understand the necessity of some agreement on a process for productively disagreeing with each other in an increasingly diverse world where we won't be able to agree on the common good.

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In his view, our Anglo-American adversary system, characterised by the phrase audi alterum partum  ('hear the other side'), captures the almost universal procedure to come to a good decision, after argument and hearing the other side.

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Hampshire's work rests on some of what we have learned from Jurgen Habermas, that the 'acted upon' must find legitimacy in the rules and laws made for them only as long as they have participated in that rule and law-making, in what he calls 'uncoerced speech conditions' where parties engage in reasoned and principled efforts to persuade each other and democracy is enacted.

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As George Homans has taught us, complementary, not conflicting needs, make human coexistence (and legal settlements) more possible,as well as efficient.

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Lon Fuller, a notable jurisprude first articulated the modern legal theories that different processes should be used for different purposes. Fuller suggested that mediation was most appropriate for on-going relationships and with 'web-like entangled' issues; arbitration was most useful where fixed customary practices had evolved to create their own rules and customs for interpretation and application; and adjudication was needed only when private disputes required public elaboration of rules and norms.

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Fuller argued that each of these processes had its own integrity and morality . In his view, the different processes should be used for different purposes, with different kinds of parties, and should not be mixed or confused it is clear that use of these 'alternatives' to trial is increasing and the 'empirical' jury on their effectiveness is still out.

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These different values, in turn, should affect the way in which both professionals (lawyers) and parties participate in them.

Implications for Ethical Practice: New Institutions, New Roles? ●

It is time to examine how lawyers' roles have changed as well and how the processes they practise in may require different normative structures. ○

Some believe there is too much adversarial behaviour (in overly contested procedures and behaviours), greater complexity, either written or behavioural (the exportation of American litigation styles in international law, such as in commercial arbitration seek to control lawyer practices with changed procedural rules (Lord Woolf) or more extensive ethical and disciplinary regulation within conventional adversarial structures.

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Others, like myself, have suggested that we have evolved into a multiplicity of new dispute institutions with many new and varied lawyer roles, that require their own, separate, and different 'moralities' or 'integrity', as Lon Fuller has suggested. Thus, what we may need is not only 'tinkering' with current rules and practices, but a recognition that new and evolving lawyer roles require new rules and practices.

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So, the first question is, can we/should we/is it possible to have unitary and enforceable 'ethical' rules for practices in both the public and private sectors? Although English lawyers are accustomed to a divided bar and the separate rules of the law society, even in the civil context,a growing number of legal scholars and ethicists have suggested that different roles and different locations of practice might require different ethical requirements.

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Murray Schwartz of UCLA Law School, who argued that when lawyers act in private (such as in either litigation or transactional negotiations) they ought to operate under higher standards of disclosure and substantive fairness to others, because (unlike in the courtroom) there is no third-party judge to supervise their actions (and no requirement, that lawyers must disclose adverse legal authority to a tribunal (now including arbitration but not mediation)).

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Thus, Schwartz recommended an ethical rule that would have required lawyers to be candid in their disclosures to others and to act fairly with respect to substantive negotiated outcomes. A lawyer should not consent to an agreement he knows to be unconscionable or likely to cause harm to others.

From Page 108- 115

This proposed rule was soundly defeated by extensive lobbying by the practising trial bar and by other legal (and co...