We need better judges.

• Author: Pope, Michael A.
• Position: President's Page

AMID the heated controversy over the growing expense of litigation in America, there seems to be a major component of the equation that has been virtually ignored--the failure of the judiciary.

Our adversary system fully expects personal injury claimants and their attorneys, acting from self-interest, to seek as high a recovery as they can, just as our clients expect defense counsel to work hard to keep any recovery as low as possible. But what of the role of judges? If they fail to perform their proper function, who pays the price?

The answer seems clear to me--the entire system loses. Yet, for some reason, there seems to be little or no discussion of this breakdown in the delicate balance that underlies the adversary system and the huge costs flowing from that breakdown.

Obviously, when discussing a process as complex as the American civil justice system, we should avoid reliance on anecdote and nostalgia. Nonetheless, my own experience suggests to me there was a time in the not-too-distant past when there were more judges who believed it was their job to make decisions. They were not intimidated by the size of the case or the consequences of making a mistake. They ruled on motions, they settled discovery disputes, and they tried cases. If a complaint failed to state a proper cause of action, they would dismiss it. If the attorneys could not decide on whether an interrogatory should be answered or a series of documents should be produced, they would review the request and make a definitive ruling. If discovery showed that there was not a genuine issue of fact, they would grant a motion for summary judgment and dismiss a claim or strike an affirmative defense. And perhaps best of all, when the time came for trial, they would put a jury in the box and try a case to conclusion.

Judicial Indecision Adds to Costs

Today's defense counsel are confronted with multimillion dollar claims (often by claimants who are not even injured), contingent fee lawyers who are willing to spend huge sums to prepare their cases, and clients who question whether the cost of winning will be more expensive than early capitulation. And yet a major share of the responsibility for runaway litigation costs must rest at the feet of trial judges who fail to make decisions.

Every time a judge refuses to dismiss a case that ought to be dismissed, he or she adds thousands to the litigation cost. Every judge who fails to grant summary judgment when the record supports it adds...