Question

What are some changes that could be made to improve the law or the legal system? The improvements could be aimed at specific laws or procedures, or even at the basic business of law.

Answer 1

Changes that could be made to Improve the law or the legal system are:

1. We need go back to our professional roots. Law needs to be a civil and collegial profession first and foremost. Professionalism is extolled, but often observed in the breach. That has to change—even within the current economic realities of the profession.

2. We need to be guided by justice. The focus should be on justice, not on winning at any cost. Lawyers have an independent duty to work within the system in a way that protects procedural fairness and justice. Zealous advocacy and the adversary system can no longer be a convenient cover for gamesmanship and exploitation.

3. We need to dig deep, earlier. Lawyers need to develop deep understandings of their cases early in the process and purposefully tailor plans for those cases rather than conduct rote discovery and motions practice and allow plans to emerge over time.

4. We need a new approach to discovery. Most of the surveys across the country identify abusive discovery as one of the primary sources of burgeoning costs. The parties should seek and receive the discovery they need in a particular case to assure that the search for the truth is honored, but no more. We need to eliminate “scorched earth discovery,” or discovery as a tool of gamesmanship.

5. We need engaged judges. Judges need to be engaged, accessible, and guided by service. For the cases that require direct oversight by a judge, the judge must delve into the case at an early point in time and adopt a pretrial process for that case. Discovery motions should be resolved simply and quickly; dispositive motions should not be allowed to languish; and continuances of deadlines or court dates should be a rarity.

6. We need courts to take ownership. The courts need to be accessible, relevant, available to serve, and responsible for providing procedural fairness in every case. Once filed, the cases belong to the system, and the system must assure a fair and effective process.

7. We need efficiency up the court ladder. We need to use everyone within the court structure more effectively and efficiently. There are cases in which the litigants can benefit from processes that make use of trained nonjudicial personnel for oversight and management. Those cases must be identified at an early point in time and placed on a different track.

8. We need smart use of technology. We need to use technology for efficiency, effectiveness, and clarity—in the courts, in law practice, and in ensuring that the system is accessible for nonlawyers. Litigant portals, push notifications, and other user-friendly technologies must be imported into the courts.

9. We need to value our court system. As lawyers and judges, we need to fight for appropriate budgets for the courts and fight to defend the courts. We also must fight to preserve the right to trial by jury in civil cases, as well as criminal.

10. We need to realign incentives. We need to focus on the incentives driving lawyers and judges and work to align them with our goals for improvement of the system as a whole. For example, the hourly rate may be a deterrent to change. So, too, may be court time standards that focus on time to disposition rather than procedural fairness.