Deliberations

Behavioral Change Needed to Curb Civil Litigation Crisis

By Richard Gabriel

 Over 150 years ago, Abraham Lincoln famously ended the Gettysburg Address with: “and that government of the people, by the people, for the people shall not perish from the earth.”  And yet the jury trial, as guaranteed by the Sixth and Seventh Amendments of our Constitution, is perilously close to vanishing from the judicial landscape.

Civil jury trials are under 2% of filed suits in federal courts and under 1% in state courts.^[1]  California court budgets have lost almost half a billion dollars since 2008, closing thirty-nine courthouses and seventy-seven courts in still-open courthouses.^[2] Peter Wolff, the head of Hawaii’s federal public defender’s office, even stated that his office’s projected budget cuts will make it too difficult for his office to handle complex white collar and death penalty cases^[3], a direct threat to defendants’ Sixth Amendment rights.

In federal courts, judges are routinely using time limits on trials and numerous jurisdictions are either studying or implementing discovery limits . In a survey conducted by the Institute for the Advancement of the American Legal System in 2010, approximately 80% of 6,800 attorneys and judges nationwide felt that the cost of litigation forced cases to settle for reasons other than merit.^[4] All of these increasingly frequent anecdotes beg the question: is the civil justice system like Detroit, heading for bankruptcy? If so, what would be the “Chapter 11” restructuring plan? Will reduced resources, arbitrary limits, and reactive legislation become the norm?

Virtual Witness Preparation

By Katherine James

 

 

“O brave new world that has such people in’t!”

William Shakespeare, The Tempest

 

“...most men and women will grow up to love their servitude and will never dream of revolution.” 

Aldous Huxley, Brave New World

 

Yes, it is a brave new world – this world of virtual witness preparation. In my practice I find it to be a revolutionary new chapter in my professional autobiography (thank you, Aldous!). But I didn’t always feel that way.

A good two years before I started helping attorneys prepare witnesses virtually I thought it was impossible. I believed that unless I was in a room with a person, I couldn’t make an impact on that person’s ability to be a better witness. What’s more, without “being in the room” how was I going to have an impact on the attorney? Much of witness preparation is also attorney preparation – helping to develop the series of questions in direct examination, for example.  Add into the mix that I work with clients all over the United States and occasionally overseas.

 So what changed my mind?