Maybe light at the end of tunnel: is the litigation explosion imploding?

• Author: Miller, Arthur R.

WE KNOW deep in our hearts--although sometimes we don't want to admit it--that our civil litigation system is in deep trouble.

It has major flaws. Its inability to settle and resolve civil disputes efficiently or economically is beyond doubt. We know the ancient axiom: Justice delayed is justice denied. So the time inefficiency of the system is a major societal concern. It is equally axiomatic that justice that comes at a price most Americans cannot pay is justice denied. So the cost inefficiency of the system also has a serious and deleterious social impact.

These twin scourges of cost and delay exist, and they are cancerous. The system is trying to deal with them as best it can. But the present sickness is not indigenous to the American civil justice system, nor is it a contemporary phenomenon.

Writings of the ancient Chinese reveal that people 3,000 years ago worried about having to go to court--the notion being that if you had to resort to the ancient Chinese courts, you were doomed. Hamlet rued the law's delay, reflecting Shakespeare's appraisal of the Elizabethean English courts. Goethe, a lawyer more famous as a poet and dramatist, left the German legal profession in disgust because there were cases in the German courts that had languished there for three centuries. Jarndyce v. Jarndyce, Dickens's classic illustration of English legal ineptitude, resulted in the total decimation of an estate through legal cost and delay.

WHY? OH, WHY?

Even if civil justice systems have been endemically slow and costly for centuries, it doesn't make one feel any better to know that the German courts of the 18th century looked about as bad as the American courts of the 20th century. But why?

There are a lot of pop cliches paraded to explain the "litigation explosion," that expression itself being one. What little empirical data that exists is very confused as to whether there really is a litigation explosion as measured by the quantity of litigation, the number of cases. The United States has an expanding population base, so it's not surprising that there is an expanding litigation base. Also keep in mind that probably 50 to 55 percent of all cases in the system are matrimonial actions, and that skews any statistical study. Nevertheless, there is a pervasive perception that there is a litigation explosion that has created a liability crisis.

There's no doubt that in modern times the characteristics of litigation have changed. Dimensionally, it's different: it's bigger; it's more intractable. And there probably is an escalation in the number of cases instituted. Again, why?

It's said--another cliche--that Americans are litigious. Is it in the water, or somehow has there been a gene mutation rendering them genetically litigious? Then, of course, there's the one about Americans being of frontier stock and never forgetting the imagery of the shootout at the OK Corral. Well, the frontier is closed, and now the shoot-out is summonses and subpoenas. Have we sort of transmogrified the frontier spirit from six-guns to courts?

Then there are the lawyer statistics. The United States has a lawyer for every 400 people. Americans litigate at a rate three times per capita that of the United Kingdom. At a rate 40 times per capita that of our historic economic trading partners, the Japanese. Americans are litigious. That breeds the litigation explosion; that breeds cost and delay.

DIGGING DEEPER FOR CAUSES

But it isn't as simple as the cliches would have it. There is something about Americans and their love-hate relationship with the law and their love affair with the courts. Over time there has been engendered in...