I enjoyed "What It Will Take"
[November], but none of the contributors addressed the basic unfairness eroding the court system. The courts generate enough fees, fines, penalties, and interest to fully fund the system. Yet most of the money goes to the general fund, which according to William C. Vickrey returns a mere 2.5 percent to the court system. In other words, 97.5 percent of the courts' "earnings" are used for [things] other
than the court system. Thus, Paul D. Henderson's idea of a "sliding-scale fee system" misses the mark. A four-month products liability case could be charged $10,000 in fees on a sliding scale but return only $250 to the court system. The court-using public would be asked to fund far more than its fair share of the overall state budget.
Adding to this injustice is the devaluation in court services over the years. In 1977 it cost $25 to file a superior court action; today the filing fee is almost 16 times higher. However, a dollar had about 3.6 times more buying power in 1977. What additional value are we receiving to justify a 400 percent increase in filing fees, far in excess of inflation? With all due respect to the many fine judges, clerks, courtroom assistants, and administrators, the public receives far less value today. We now must pay additional fees to file motions, obtain judge's signatures on stipulations, and for a court reporter to transcribe hearings, all of which used to be included in the initial filing fee.
A lawyer would be disciplined or disbarred for a disclosure failure of far less magnitude than the obfuscation of the truth about court funding. None of your prominent figures even came close to addressing this issue. It is time to put it on the table for all to see: The court-using public is being unfairly taxed for using the judicial system. Either tell it like it is, or fix it. Better yet, do both.
C. Timothy Lashlee
Clearly, "austerity" is
[now] accepted government policy - and this policy will prevail for some time, regardless of the outcome. The cutback in funding for government services will accelerate, and the courts will not escape the consequences. The judicial branch will be unable to serve the public as well as it has in the past because of deliberate cost reduction by the Legislature. Diminished resources will slow the flow of cases through the system. Immediate changes must be made or the public will be forced to seek alternatives to resolve disputes. Here are some suggestions:
Extend the small claims jurisdiction limit to $15,000 and limited jurisdiction cases to $100,000. Raise filing fees for large, complex business cases, based on both ability to pay and usage of resources. Change trial court policy and procedures: Set up a scheduling conference soon after appearances, and make a scheduling order, as in federal practice (FRCP Rule 26), containing cutoff dates for discovery, experts, pretrial motions, and a trial date.
Also, discourage discovery disputes, and be less lenient with discovery abuses to prevent the deliberate prolongation of the litigation. Require a joint stipulation, as in Federal Central District Local Rule 37, rather than a motion to compel. Impose sanctions to actually compensate prevailing counsel and to discourage obstructionist litigants.
Additionally, don't grant requests for continuances for convenience or tactical reasons. Attorneys have an obligation to the court and their clients to comply with the scheduling order. Be serious about the case management goal of having cases ready for trial twelve months from filing. Conduct rigorous case-management conferences, where significant sanctions are imposed for nonappearance, the case scheduling order is reviewed and updated, and the judge actually manages the case, i.e. makes new orders as needed about cutoff dates for discovery, experts, pretrial motions, and trial date. Then set strict time limits to try a case, as juries will appreciate this.
Emile M. Mullick
I would find it much
more interesting and potentially more useful if your experts spoke to the people who actually work in the courts. Talk to clerks, court reporters, bailiffs, research attorneys, probate examiners, and ADR folks. In the private sector, engagement with line-level employees has proved invaluable in helping to improve service and efficiency.
First off, we need
to crowdsource this whole mess. And maybe have underemployed and highly qualified Bar members such as myself do mediation or arbitration pro bono, or on a sliding scale, for those who wish to participate. Or would that be too easy?
E. Carroll Straus
"Spielberg, Guantanamo, and Me"
[In Pro Per, November] is the saddest essay California Lawyer
has ever published. What could've been the triumphant story of a man who escapes the Holocaust to build a life in America and whose son achieves a respected position in society as a lawyer and law professor becomes a tragedy when it turns out that the son is so morally foolish that he can't tell the difference between a Nazi death camp and an American POW camp. Neither can he understand the difference between recording the testimony of witnesses to a genocide, which some fanatics deny mere decades after the event, and interviews with people who are still involved in a conflict and often have more incentive to discredit the United States than to accurately report the truth.
Professor Honigsberg's self-aggrandizing comparison of his work to that of Spielberg's Shoah Foundation (which has expanded its work to include survivors of the Rwandan and Cambodian genocides) is pathetic.
Allen E. Rennett