… and where is America, in the litigation revolution? A new post-Gutenberg.com clippings file on democratising law
Anyone trawling the net for answers is liable to be shocked by evidence that the U.S. is far from keeping up with Britain and Australia, not just in the pace but scope and scale of transformations slated for the near future. Too much of this depressing extract from an interim report in the Briggs review of civil litigation in the U.K. — spotlighted in our last post — is even truer in the U.S. than in Britain. After noting that the ‘civil courts of England and Wales are among the most highly-regarded in the world,’ Lord Justice Briggs summarised some of the reasons why they deserve praise, then added:
It would however be wrong to describe these qualities as evenly spread across the whole of the civil court structure, still less as equally available to all actual or potential court users with civil disputes needing resolution. In general, these strengths and advantages are there to be enjoyed primarily by those sufficiently wealthy to be able to pay for the professional costs of legal representation, coupled with rapidly rising court fees, and with the financial and emotional resources to endure the large risks of liability for opponents’ costs, should they lose, in most areas of civil litigation. [our emphasis]
We are intrigued enough by our discoveries to have started a clippings file on relative progress in reforming litigation in countries — including India — that stand out as possible models or, like the US, confound reasonable expectations.
A DISTINGUISHED SCHOLAR WHO WANTS CORPORATE AMERICA TO HELP IMPROVE LEGAL ACCESS
Renee Newman Knake, a legal expert who has served as a scholar-in-residence at the Center on the Legal Profession at Stanford University, is most famous as a co-director — with Daniel Martin Katz — of the ReInvent Law Laboratory at Michigan State University. She already ranks high among the notables in our collection for courage — having been branded a ‘legal rebel’ by the American Bar Association, not least for appealing to her fellow-countrymen’s capacity for shame:
A nation that holds itself out as a beacon of justice and an exemplar of the rule of law to the rest of the world denies meaningful access to the law on a daily basis to the majority of its population. Lawyers are out of reach for most individuals unless they enjoy extreme affluence or subsist at poverty levels.
We are uneasy — but keen to know more — about her perception of commerce as the solution to America’s litigation gap, probably because no branch of government seems willing or able to take the lead in addressing it:
Corporations like Google and Wal-Mart know a great deal about the delivery of services, goods, and information to the mass public. These corporations and many others have the capacity to make significant financial outlays into innovative mechanisms for providing legal services and await a delayed return on that investment. … [C]onsider that London- based WHSmith stores began hosting legal kiosks in 500 stores in the fall of 2011 through a partnership with QualitySolicitors, a British legal services provider. British shoppers can purchase a newspaper and obtain routine legal assistance such as divorce filings, wills, real estate transactions, and basic contracts in the same location. In the United States, Wal-Mart already offers financial and medical services to its customers. It is not difficult to imagine other alternative law delivery models …
A JOURNALIST SPOTLIGHTING AMERICA’S RATINGS IN THE WORLD JUSTICE PROJECT
Winning points for persistence, Dan Froomkin of The Huffington Post has written virtually the same story at least twice, in different years, about the U.S.’s poor showing in international rankings of justice systems.
Access to justice is a core American value. But …[t]he “Rule of Law Index,” released Wednesday by the independent World Justice Project, found that in some categories the U.S. even ranks below some developing nations, such as Botswana and Georgia.
ARE LAWYERS BRIBING THE DEMOCRATS TO HEAD OFF ATTEMPTS TO DEMOCRATISE LAW?
The best hint we have found, so far, about obstacles to acting on the dire need for change is in the Harvard Law School paper to which we linked two posts ago. It blamed moneyed interests and diabolical political manipulations for the notorious outcome of class action suits in which America leads the world: lawyers walking away with stupendous shares of settlement cash, while the plaintiffs on whose behalf they have supposedly been toiling end up with trifling sums. The authors, Mark Ramseyer and Eric Rasmusen, offer this revelation rather startling for some of us about lawyers pouring money into the traditional party of underdogs, to ensure that it does as little as possible to reform litigation for the benefit of ordinary people:
The U.S. has 250 securities class action suits per year that shuffle billions of dollars among overlapping groups of investors but provide no noticeable benefit to the very class of people it recruits as plaintiffs. There are no adversarial lawyers to alert judges to abuse. The country spends up to one billion dollars per year to finance these. An obvious question is why Congress and the courts let this happen.
… The answer lies in the politics of the bar. Attorneys in all sectors give heavily to the Democratic Party. In 2008, attorneys with the large Chicago law firm of Sidley & Austin gave $1.4 million to politicians, 81 percent to Democrats. … [M]ost other large firms gave heavily to Democrats too. Sidley’s prime Chicago rival, Kirkland & Ellis, gave $1.3 million, 76 percent to Democrats. The large New York corporate firm of Skadden Arps gave $1.7 million, 82 percent to Democrats, and even the more traditional Sullivan & Cromwell — the quintessential “Wall Street establishment” firm — gave $1.2 million, 75 percent to Democrats.
The trade association for the plaintiff’s bar gives more, and more overwhelmingly to Democrats. That group — long called the American Trial Lawyers Association, but recently renamed the American Association for Justice — in 2008 gave over $3 million to politicians, 95 percent to Democrats. The group lobbies hard against tort reform of all kinds and particularly hard against reform of the securities class action.
…ATLA fights vehemently against attempts to reform medical malpractice law.
IN INDIA, THE CHIEF JUSTICE IS PUSHING FOR A TRANSPARENT AND ACCESSIBLE LEGAL SYSTEM
It would be indescribably amazing if America were to fall behind … ah — why not? — India in the transition to online or virtual justice, to democratise law. The start of a report in The Hindu last September, about the nationwide eCourts Project:
Inviting the public to keep tabs on the burgeoning case pendency rates of their local courts, the Supreme Court launched the public access portal of the National Judicial Data Grid (NJDG) for district courts in a step towards demystification of judicial process for the ordinary citizen and what ails the justice delivery system across the country.
… The public access portal — designed under the guidance of Chief Justice of India H.L. Dattu … will disseminate for the public national, State, district and court-wise information about institution and disposal of cases on a monthly basis.
… “This initiative is in furtherance of the motto of judiciary to promote transparency and access of information for all the stakeholders of the justice delivery system,” the statement said.
The Indian judiciary comprises nearly 15,000 courts spread in approximately 2,500 court complexes throughout the country, the e-Courts Project website said. It said the efforts for computerising court processes have been on since 1990.
A December report in the same newspaper described courts using texting in a small city, Bidar (in Karnataka, the same state as Bangalore) to serve the public in ways we have certainly never heard of being employed anywhere else:
Shantavva Halembure has a hearing in the court of the Deputy Commissioner and District Magistrate. The septuagenarian … has to make a tiring bus journey for two hours to come to Bidar. However, just when she is getting ready to leave, she gets an SMS saying that the hearing is postponed to next Tuesday. She is relieved and begins to focus on her daily chores. This facility, now being extended to petitioners, is part of a project to digitise the District Magistrate Court.
“This helps us address two issues — it makes monitoring easy and aids petitioners by making the system transparent,” says Deputy Commissioner Anurag Tewari, who trained to be an electronics engineer.
As part of a pilot project being taken up, documents related to all current cases have been digitised …