February 2003

A Time for Introspection: What's Wrong with the Civil Justice System

by Dick Manning, WSBA President

Then and Now

I thoroughly enjoy being a mediator — something I do a lot in a variety of cases. It always gives me an opportunity to talk about the way litigation used to be: a typical case might have had one simple set of interrogatories and one deposition per party, a two- or three-day trial (although many cases were settled on a telephone "handshake"), whether bench-tried or before a jury, and few appeals. In personal-injury cases, verdicts tended to be in the range of $1,500 to $25,000 — except in the big cases. What did one of these or similar disputes (e.g., breach of contract, construction, etc.) cost the client on an hourly fee basis after the post-trial motions? Try $2,500 — maybe $3,000 tops! Today, a simple motion in King County Superior Court may cost a party as much as the total cost of a case in years gone by. As one recent unsolicited caller threw at me in desperation when I was trying to get her some pro bono assistance: "Justice is only for the rich!" Except for the contingent-fee case, there are some seeds of truth in the caller's exasperation.

It would be a cop-out for me to say "those were the good old days." Yet, today it is not uncommon for litigators to engage in numerous rounds of discovery of all kinds, a variety of pre-trial motions (of all kinds), engagement of experts and their interviews, as well as a bountiful assortment of research and trial preparation — all of which frequently lead to litigation costs for each party that rival the amount in controversy. And that's before trial! This is not criticism of litigators. This is the way the system has evolved — for many reasons, not the least of which is the due diligence demanded of lawyers by their litigation-prone clients.

Yet there is no question that much of the public is disaffected with what we trial lawyers do — born of the adversarial system we use in searching for the truth. Part of this disaffection is based on fact — and part on a misperception of how the justice system operates. Years ago, the American Judicature Society (AJS), a national association of judges, lawyers and citizens formed in 1911 to improve the administration of justice, conducted a survey of parties who had been through a trial to verdict or judgment. Seventy percent of the "winners" responded they were dissatisfied with the process.

I presume 100 percent of the losers felt the same way.

Many in our own legal community are urging us to re-examine the way we resolve civil disputes. Roberta Katz is a former member of one of Seattle's most respected large law firms. While serving as general counsel for an internationally known technology company in 1997, she wrote the book Justice Matters, urging a dramatic reform of the civil justice system. Her position: The system is poorly suited to resolving most disputes in the modern world by its emphatic focus on litigation. And her position is certainly borne out by other studies and surveys, including one by the American Bar Association. The focus on winning (or on making someone else be the loser) has a lot to do with how much public trust and confidence is enjoyed by the legal profession. (Lawyers were ranked eighth out of nine professions in a 2002 ABA survey — only the media ranked lower.) Many people believe the system is too demeaning, complicated and expensive, and takes too long for a final outcome.

Katz views an urgent need to emphasize problem-solving by restructuring our courts according to practice areas — the types of cases courts handle — rather than geographic jurisdiction. Her concept for judicial determination when settlement cannot be achieved is to have the dispute submitted by lawyers and experts to jurors familiar with the subject matter involved. (It's interesting to note that in the construction industry, this practice is done frequently with dispute review boards while construction is still under way, and with arbitration panels of experts when the dispute cannot be settled.)

Supreme Court Justice Bobbe Bridge, in her commencement address to the Gonzaga University School of Law class of 2002, commented on Katz's book:

The message of these alternative means of practice is clear: respond to the real needs of the client, not the search for the technically perfect answer, and develop a personal attachment to the outcome without losing your sense of objectivity. Understand why the client is in need of your help to begin with and be not afraid to follow a non-adversarial path. Be a problem-solver.

Our adversarial system of jurisprudence has a long history, and I am not suggesting we abandon it — it would be like throwing out the baby with the bath water. But isn't it time we engage in some constructive self-examination about how the roots of this system have brought our attitudes to where they are today? Joseph Shaub, a Seattle family law practitioner, wrote an interesting and provocative article in the December 2002 issue of the King County Bar Bulletin. While tracing the history of the current system, he quotes Carrie Menkel-Meadow's treatise Is Altruism Possible in Lawyering? (Georgia St. Univ. L. R. 835 [1992]):

To say that lawyers should consider, let alone care, for the other side of a legal problem is probably close to blasphemous in our lawyering practices.… This is what I wish to confront — the way our legal system asks us to wage war, without seeing the person on the other side. For lawyer's work, like soldier's work, has been justified by its role morality. We permit these specific actors to engage in behaviors that we would ordinarily condemn because their role, performed with a morally defensible situation, war or litigation, require it. We might examine how the imagery of war, scarcity, and zero-sum assumptions is the imagery of our legal system.…

Imagine a system of legal education and training that creates experts in conflict resolution — not in the sense of the advocate who can promote one side and cut down the other — but in the service of more republican values. Imagine further that we lawyers seek to understand the other side's best arguments, not for the purpose of destroying them, but for the purpose of educating our clients about what is noteworthy and supportable in the other side's cause, as well as their own.

Paul Lehto, an Everett lawyer who focuses on consumer law (and who is a member of the WSBA Board of Govenors), is a passionate advocate of collaborative lawyering. He writes how collaborative law has replaced the traditional adversarial approach in family law practice in Medicine Hat, Alberta, Canada. There, lawyers and clients agree to work toward settlement. The clients are told beforehand that if an adversarial proceeding is to be filed later with the family court, then the lawyers must withdraw and the parties must engage trial lawyers. This creates an environment where the collaborative lawyers must focus on settlement and use creative problem-solving skills. Many see this kind of approach to dispute resolution as the wave of the future — lawyers and others striving to take as much of the contentiousness out of dispute resolution as possible. (For more information, see http://www. collabgroup.com.)

I can tell you from my own experiences as a mediator in many different practice areas, there are three things most parties want: (1) a neutral they trust to listen to their viewpoint (the need to be heard with empathy); (2) not to be judged as wrong, or even necessarily right (they don't mind being asked questions which, if answered candidly, suggest some weakness in their position); and (3) resolution which fulfills their needs so they can put the matter behind them and move on. All successful mediators know this, and that's why relatively few mediations by these mediators fail.

What I've been talking about in this article is collaborative lawyering. Thankfully, many trial lawyers engage in collaborative lawyering in civil cases. There is also a trend under serious discussion in the criminal justice system, sometimes referred to as restorative justice, that partakes of some attributes of collaborative lawyering. That discussion will await another column.

Collaborative lawyering is not new to our legal community. There are many different protocols — the Medicine Hat, Alberta, experiment being only one. Recently, the Washington Defense Trial Lawyers Association conferred a new award, Outstanding Plaintiff Trial Lawyer, to a well-known plaintiff personal-injury lawyer, Keith Kessler, of Stritmatter Kessler Whelan Withey Coluccio. (Similar awards were given a defense lawyer, Michael Runyan of Lane Powell Spears Lubersky; and a defense-litigation associate lawyer, John Gagliardi of Fain Sheldon Anderson & VanDerhoef). Keith, in being honored for his adherence to the highest professional standards for a civil plaintiff lawyer, was singled out by this defense association for advancing the cause of collegiality, professional decorum, and utmost ethical standards while practicing supreme advocacy for his clients. What Keith has done is uphold the passionate art of advocacy without demeaning his adversary. Well done, Keith!

To be sure, there will always be a place for a trial to resolve the irresolvable. But isn't it time to take a second look at our current legal culture? Can't we engage in a dialogue and chart a course that might help us serve our clients' needs — the whole person — better? Some lawyers are doing it now. Why not the rest of us?