Planning for tomorrow's tort system.

What will the American civil justice system be like a quarter century from now?

Will our children live in a system with greater or fewer rights than we enjoy today? What in our current system can be improved? What dangers does the civil justice system face from social, economic, and political forces?

These questions come to mind when one evaluates justice in the Balance 2020, a report completed in December 1993 by the Commission on the Future of the California Courts.(1) The report outlines a long range strategic plan for delivering judicial services in the 21st century. Because California's court system is the largest in the nation, this blueprint may also serve as a guide for many other state court systems.

The commission consisted of 43 people--lawyers, judges, police officers, teachers, businesspeople, and elected officials. The commission was charged to explore trends likely to affect the courts, create a vision of a preferred future, and develop a set of recommendations to move the courts toward that future.

The report paints a preferred future that will be better in every way: "It is 2020. In both perception and practice the California courts are scrupidously fair, accessible to all. Comprehensible and comprehending, they have the confidence of the powerless and the powerful, the poor and the wealthy, the victim and the offender. Their commitment to high-quality equal justice is absolute."(2)

This hope, however, is not supported by the facts in the report. What is especially troublesome, for example, is the acknowledgment that funding for the justice system will be primarily, if not exclusively, the responsibility of the state, but future funding will be below the present level.

Where will the money come from to serve more people better? The commission's answer is that it will come from taking lawyers out of the system, reducing people's rights, and somehow--in a way not fully explained--having a more law-educated populace able to represent themselves in the system.

The assumption of the report is that, while California's courts are among the world's finest, a lot of fixing will be needed to meet the economic and social challenges of a rapidly changing state.

Social Predictions

The report predicts a 66 percent population increase by 2020. Hispanics will account for 41 percent of the population; whites, 41 percent; Asian Americans, Pacific Islanders, and Native Americans, 12 percent; African Americans, 6 percent. California's per capita income, which was 17 percent above the national average in 1980, will be less than 4 percent above average.

Other states may not change so dramatically as California during the next 25 years, but most expect greater driversity and the need to get by with fewer resources.

Forecasting the future, though, is like forecasting the weather. You have to base projections on current conditions, but unexpected changes frequently alter the anticipated results. In away, Justice in the Balance 2020 is like a well-intentioned weather report that didn't take all the relevant factors into consideration.

Some assumptions are naive. For example, there is an implied belief throughout that the legislative, executive, and judicial branches of local, state, and national governments will work together in 2020 in a way that they have not since 1787.

Other suggestions are more dangerous. They seem to echo the attacks on the civil justice system that have come from big business and insurance interests. Unlike the weather, which "everybody talks about, but nobody does anything about," the civil justice system can be changed. Our concern should be that some of the commission's "preferred future" changes may leave people with less justice in 2020 than we have in 1995.

On the one hand, 2020 anticipates a future society of unparalleled diversity and tolerance, one that finds new and creative ways to improve civic life. On the other hand, the same data may suggest a future that has more people with less power--a growing minority, population and a declining standard of living.

There is every reason to believe that economic hard times will fall hardest on nonwhite residents, as has been the case throughout our history. In 2020, the median age of Hispanics in California will be 27, whereas the median age of whites will be 44. People in their forties control more wealth and information than people in their twenties.

Which group will more likely be on the controlling boards of corporations? Which group will more likely characterize the attorneys who defend those corporations? Which group will most likely be harmed by defective products, dangerous activities, and toxic pollution? You don't need a crystal ball to answer.

More people shut out of the system means more people potentially harmed by corporate misconduct who will not be able to fight back. Those who do find consumer lawyers to defend them may be facing a legal system in which it is even more difficult to hold corporate wrongdoers accountable.

The future described by the 2020 statistics could be a society consisting of a small number of people with most of the wealth and information technology and an increasingly frustrated majority alienated from the system. Cynics may say that this is the system we now have. The point is that the commission's solutions may make things worse, not better.

Proposals for Change

In general, the commission's proposals aim to make the judicial system run more smoothly and efficiently. Some conflicts are expected to be resolved outside the traditional court system. Eight recommendations specifically apply to the civil justice system:(3)

* Cases in the public justice system should be actively managed from the time of filing to disposition. Differentiated case management plans are expected to sort cases by type and assign them to adjudication tracks based on complexity and other factors.

* Measures should be adopted to curb the abuse and the cost of discovery. These measures would include mandatory phased discovery plans, mandatory automatic disclosure in certain types of disputes (like those involving auto injuries), mandatory sanctions for discovery abuse, mandatory early neutral evaluation in complex matters, and judicial discovery in certain types of disputes (like professional negligence cases).

* Jury selection and empanelment procedures should be flexible. The commission wants judges to more actively manage voir dire and to use more six-member juries.

* Exemptions from jury service should be narrowed.

* Process reforms should be implemented to assist jurors in better performing their primary function: the review and evaluation of evidence. The report urges that jurors be allowed to ask questions and take notes during trials, that jury instructions be written and available to jUrors during deliberation, and that experiments proceed with the use of edited videotape for juries to view instead of witnessing entire trials. The video would delete sidebar conferences and eliminate delays and interruptions.

* For certain types of cases, alternatives to law juries should be considered. The commission suggests that special juries of experts might be better for complex cases and that the judge could be granted the discretion to determine liability, leaving damages issues to the jury.

* The justice system should begin today to craft new rules and procedures to govern the complex cases of the future. This refers to "yet-to-be-invented procedures" for handling mass torts and class actions.

* Punitive damages should be reviewed with an eye to establishing a more rational method for their award and distribution. The commission here proposes designating part of punitive damages awards to a Civil Justice Fund to provide civil representation to those who would otherwise be unrepresented.

Evaluation

Some of these suggestions should certainly be considered. Some arc already in use in California or in other states.

But we cannot let statistics and the drive for economic efficiency dictate individual rights and civil justice. We cannot allow a gatekeeper to limit or deny the rights of a person seriously injured by a defective product.

With reference to proposals for improving discovery, the report notes that in a 1987 Harris poll, 45 percent of federal judges and 34 percent of state judges cited "abuse of the discovery process" as one of the most serious causes of civil delay in the courts.(4) The report candidly states that billable-hour lawyers may use delaying tactics because the system "rewards counsel for maximizing time expended in resolving matters. It creates disincentives to limit discovery voluntarily.(5)

The fault, however, is not only with the lawyers in a case. In suits against large corporations, the business defendants often don't play straight with their own attorneys. They hide evidence and encourage the attorney to play hardball.

The commission wants more involvement by judges in the discovery process. But this could lead to a cookie-cutter process imposed by judges who have little knowledge of the specific case at hand. If attorneys really want to speed up the discovery process, they should exchange more material faster, and judges should set trial dates more quickly.

With reference to the proposals related to voir dire, I think it would be a mistake to get judges more involved. As with discovery, they do not know the specific cases well enough. There has never been any evidence that civil voir dire takes too much time or costs too much money.

As for the proposals related to trial procedures, California studies have shown that juries of fewer than 12 people do not really save time or money.(6) Note-taking by jurors is a good idea, and it is already allowed in many jurisdictions. Permitting questions from jurors may also be a good idea, but the format for this procedure would have to be developed carefully.

The commission suggests that the court system could be partially funded from punitive damages awards. This may be good public policy--and many consumer attorneys have supported the proposal--but the suggestion falls short of real funding needs.

There were only 355 punitive damages awards nationwide in products liability cases from 1965 to 1990, and there were only 265 in medical negligence cases from 1963 to 1990.(7) In addition, as the commission should know, about half of all punitive damages awards are reduced or reversed on appeal.

This gap between good intentions and practical reality, is evident in a proposal made elsewhere in the report. It was suggested that courthouses stay open at night and on weekends to better accommodate jurors' daily schedules and reduce work-related excuses. The commission, once again, ignored the question of where the money might come from to pay for the extra hours of court service.

I would suggest that the court could operate more efficiently by restructuring jury time. A court day now usually consists of our or five hours before a jury. Instead of having a morning shift from 9 a.m. until noon, followed by a 90-minute break, and resumption of trial in the afternoon, the morning session could last from 8 a.m. until 1 p.m. That would leave the rest of the afternoon for motions, conferences, and other court work and jurors would spend less time at the courthouse.

No Litigation Explosion

The report does deliver some good news. It impeaches the notion that the current tort system is crippled by a litigation explosion and frivolous lawsuits. This distortion, fueled by special interest groups, is clearly shown to be untrue.

In California, the number of motor vehicle lawsuit filings declined almost 46 percent from 1988 to 1994, and other personal injury lawsuit filings dropped 15 percent.

There has been no explosion of tort cases, nor is there likely to be one. On the other hand, there has been a 70 percent increase in the number of child support proceedings over the past six years, and criminal filings in superior court increased 375 percent from 1961 to 1992.

Will there be more civil liability cases in the future? Possibly. The commission predicts increased foreign trade and investment, which "portends growth in trade dispute and commercial dispute resolution services .... "(8)

It could also lead to even more economic power concentrated in the hands of multinational corporations. In the year 2020, a corporate class structure could be set against a consumer class structure, and the former may have more rights while the latter has fewer.

The commission reports that "all serious criminal matters will still be adjudicated. Civil disputes that warrant a trial will still receive one.?"(9)

But who decides? An "assessment and referral" system supposedly will sort out which cases merit trial and which should go to some form of alternative dispute resolution. In other words, the commission wants to create a gatekeeper for consumers in the civil justice system.

Do-It-Yourself Justice

Throughout its report, the commission assumes that there will be a major re-education of consumers, so they will be able to work through the system without lawyers. Similarly, there will be a reeducation of court personnel, so they can function more like lawyers.

The commission docs not explain how people will be better educated about their legal rights with less funding to support public education. Will the system work only for those who can afford it?

The commission correctly notes that "many of today's courthouses are approaching the status of bona-fide antiques." As an alternative, it proposes the use of electronic information kiosks and other computer applications to make legal information and dispute resolution techniques available to the public. Again, however, no mention is made about where the money to finance these systems will come from.

It may be a good idea to bifurcate the court system--not into unintended economic brackets, as some of these proposed reforms might do--but into separate civil and criminal justice systems. On its own, the civil justice system could probably be self-sustaining through user fees presently being paid-filing fees, court reporter fees, motion fees--or at least require less state funding. A clear separation would also remove the cause of many procedural delays and long waits for trial dates. A fully separate civil justice section would not diminish people's civil rights but would expand them.

The commissioners were split on what rights they believed people would have in 2020. A majority favored "the creation of a right to representation in civil matters in which life's essentials--shelter, health care, education, nutrition, child support, disability allowances, and so on -- are at issue. Other commission members opposed such a right, largely on the basis of cost."(10).

What they came up with, unfortunately, was the equivalent of "tort reform," with gatekeepers deciding which cases should or should not be admitted into the system.

The "preferred future" may ultimately be a class system, where rich people and corporations can pay for all the law and justice they want, while poor people are forced into "resolution centers" staffed by bureaucrats reading regulations.

"De-legalizing" disputes sounds like cleaning up the justice system, but it reduces the system to a utopian small claims court for handling most problems. It will only work if citizens in the year 2020 all have equal knowledge, resources, and ability to represent themselves in the dispute resolution process.

On its face this appears to be a ludicrous notion. The whole purpose of having lawyers is to provide litigants with equality within the legal system. Without trained professional legal representatives, citizens will be unable to pursue or enforce their rights against richer, more powerful adversaries.

Fundamentally, the goals of justice in the Balance 2020 are laudable--more access and more justice. But you cannot have fewer lawyers, more gatekeepers, fewer rights, and more justice. This route to the "preferred future" simply does not add up to a practical reality.

Notes

(1) For information about available copies, contact the Judicial Council and State Supreme Court, 303 Second St., San Francisco, CA 94107, or call [phone]. (2) COMMISSION ON THE FUTURE OF THE CALIFORNIA COURTS, JUSTICE IN THE BALANCE 2020 (hereafter 2020), inside front cover. (3) Id. at 135-44. (4) Id. at 137. (5) Id. at 136-37. (6) Study conducted at the request of the judicial Council of California by the National Center for State Courts, 1990. (7) MICHAEL RUSTAD, DEMYSTIFYLNG PUNITIVE DAMAGES IN PRODUCTS LIABILITY CASES: A SURVEY OF A QUARTER CENTURY OF TRIAL VERDICTS 23 (Roscoe Pound Foundation research monograph, 1991). (8) 2020, supra note 2, at 29. (9) Id at 41. (10) Id. at 65.

Wayne McClean is president of the Consumer Attorneys of California, formerly known as the California Trial Lawyers Association. He practices law in Woodland Hills, California.