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U.S. Civil Court System Needs Major Overhaul, New Book Declares

October 18, 2011 at 12:00 AM EDT
In "Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care," co-authors Rebecca Love Kourlis and Dirk Olin examine problems and potential improvements in the U.S. civil court system, where 30 million cases are filed every year. Ray Suarez and Kourlis discuss the authors' call for a major overhaul of the system.
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TRANSCRIPT

GWEN IFILL: Finally tonight, a portrait of the American judicial system.

The highest court in the land began its term this month with an unusually high number of consequential cases awaiting appeal, touching on subjects from health care reform to illegal immigration.

Drawing less attention are the 30 million civil court cases filed every year over everyday issues like traffic tickets, divorce and personal injury.

A new book, “Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care,” argues Americans don’t understand how the courts work and that the system itself needs a major overhaul.

Ray Suarez talked with the book’s co-author on the campus of Georgetown University Law Center’s Supreme Court Institute.

RAY SUAREZ: Rebecca Love Kourlis, welcome.

REBECCA LOVE KOURLIS, “Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care”: Thank you so much.

RAY SUAREZ: Well, the book reads like a 230-page indictment. What’s the problem?

REBECCA LOVE KOURLIS: Well, it’s not that complicated — or it shouldn’t be.

If you get in a car wreck, and there’s an argument about who should be paying damages, your assumption is that you can go to court to have that case resolved. The truth of the matter is that’s probably the last place you want to be, because the fees and the costs will ultimately be more than your car is worth, even if you drive a really nice car.

Or businesses — businesses need confidence in the fact that if they have a contract dispute, they can go to court, get a resolution for a reasonable amount of money in a reasonable amount of time. So, the first thrust is, we have to convince people that this really matters, that it’s very important to our social contract to have a civil justice system that is accessible, efficient and accountable.

RAY SUAREZ: Instead of making trials faster or cheaper or better, you say the tech revolution made them slower and more expensive and churned up a lot of extraneous material in the process.

REBECCA LOVE KOURLIS: It sure has.

First of all, very few cases are getting to trial. Only 1 percent of civil cases actually get to trial. All the rest of them settle, and not necessarily on the merits. They settle because one or both of the parties have run out of money or think they’re going to run out of money.

Into that process, then drop the electronic age. It’s no longer a box of documents that the attorneys are going to uncover in the discovery process. It is millions of documents, emails and text messages and voice messages, all of which are the discoverable.

The corporate attorneys will say that a lawsuit that would require $2 to $3 million in legal fees, so a big lawsuit, can require another $2 to $3 million in the costs of producing and reviewing electronic information.

RAY SUAREZ: So, no more continuances, no more lawyers appearing before judges and asking for another three weeks to review all the documents? That — doesn’t that drive the cost?

REBECCA LOVE KOURLIS: Yes.

RAY SUAREZ: Isn’t that contributing a lot to the cost?

REBECCA LOVE KOURLIS: Absolutely it does. And there are cases, as I’m sure you know, where everybody shows up in the courtroom ready to go, witnesses, you know, all of the evidence, and the case gets continued because the judge has a criminal case on which there’s going to be a speedy trial expiration or a juvenile case.

That can’t happen. Civil cases are really important. And they need to be treated as really important, both by the funding entities and by the judges and lawyers handling them.

RAY SUAREZ: A lot of the people who want to see civil court reform are just saying, let’s just blow up the process.

Put very high limits on getting your ticket punched to get into court, so cut out the stuff at the bottom, or putting a cap on awards and saying, these great big cases, forget it. A company shouldn’t be in jeopardy of being run out of business by losing one case — sort of the two ends of the rope being cut off by people who want to really, severely change the way we do that.

Are those answers?

REBECCA LOVE KOURLIS: No, I don’t think so, at least not fundamental answers.

The answer is to fix the system. The answer is to assure that anyone with a legitimate claim or a legitimate defense has access to a system that works, and to assure that judges are weeding the wheat from the chaff because they understand that’s part of their job.

You know, all of us, if in a position where we would need to be a plaintiff or in a position where we were sued as a defendant, we want to know that we can go to court and that there will be a cost-effective, just process in place.

RAY SUAREZ: One of the ways that people are talking about addressing dysfunctional courts is looking at the way judges are chosen. We have kind of a mix in the United States, don’t we?

REBECCA LOVE KOURLIS: Oh, it’s a hodgepodge. There are almost no two states that are exactly alike.

RAY SUAREZ: And what’s the problem there?

REBECCA LOVE KOURLIS: Oh, the problem is huge.

Let’s remember, first of all, that federal judges are appointed for life. As much as you can decry the political process at the outset, they’re appointed for life. And that’s part of the United States’ constitutional promise.

States are all over the map on this front. States, many states, have partisan, contested elections. Other states have systems that look like the federal system. And then there are a bunch of states that are in between, that have achieved this balance between impartiality and accountability.

RAY SUAREZ: But in a country that doggedly resists having the same answers to the same questions when it comes to how we run our state, can you recommend a model that would work in Missouri and Florida?

REBECCA LOVE KOURLIS: Sure. Sure.

And, in fact, we do. The appointing authority, usually the governor, appoints, and then that judge serves a provisional term in office, during which there’s a judicial performance evaluation, a report card, if you will. And that’s about the kinds of things we have been talking about. Is the judge running the courtroom well? Is the judge making decisions in a timely and understandable way? Is the judge well-prepared, knowledgeable on the law?

That information is packaged and available to the voters. And then the voters vote yes, no, up, down on that particular judge as to whether they want that judge to stay in office.

RAY SUAREZ: Have televised trials, have reality TV shows, have court TV shows, which have now proliferated across syndicated television, helped Americans understand how their legal system works?

REBECCA LOVE KOURLIS: Oh, I suppose, at some level, all the way back from “Perry Mason” to current court TV, it’s important to keep the court system in the minds of the public. And there are pieces of information that come through that are helpful, but there’s a lot of information that’s inaccurate and is, in fact, destructive.

The fundamental premise that people don’t get — and I bet if you walked out into the street now, or maybe even if you were to ask law students or lawyers — the fundamental problem is this notion that judges, like members of the executive or legislative branch, have some duty to listen to their constituency, to put their finger in the air to see which way the wind is blowing before they make a decision, rather than being accountable just to the rule of law and the Constitution, and having as their job description impartiality and integrity and a fealty to the laws and fact in a particular case.

RAY SUAREZ: “Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care,”

Rebecca Love Kourlis, thanks a lot.

REBECCA LOVE KOURLIS: Thank you.