Adam Dodek’s excellent post on these pages a week ago stirred up some lively comments.
The topic deserves more attention.
Everyone seems to be in agreement that there is no political appetite for more public funding for civil justice.
The solution proposed by Adam Dodek is: setting time limits for cases, limiting expert testimony and, by default, motions in writing.
Some commentators call on the judiciary as the stakeholder with the power to impose a solution. Some warn of the tendency for rationing to increase prices. Others point to the liability issues arising from leaving out marginally relevant evidence, and the unfairness of rationing access to justice. One commentator argues rules that ration may increase and complicate, rather than reduce or simplify, the existing rules.
Aggressive promotion of mediation is the solution the civil justice system heralded a decade and a half ago. But it is the drift net fishing approach, tangling up in its nets those who want their rights determined. Over the same period, probably as a result, it has become harder and harder to get a date in a courtroom in front of a judge who has the time and the inclination to listen to the case, and decide it.
I am reluctantly coming to the conclusion that the best choice, for parties who want their rights determined, is private arbitration.
True, you have to pay for the arbitrator. True, you have to pay for the reporter, and the room. And, big picture, arbitration decisions do not contribute to the incremental development of the common law. But the case starts on the date the parties want, they get a decision by the date they ask for it, and win or lose, they can move on with their lives.
Veritas Odit Moras – Truth hates Delay.