Hi. I’m James Maxeiner. Along with Gerald Russello, I’m guest blogging this week. Although I teach law now, formerly I was a litigation lawyer and in house counsel, so I look at things from a practical perspective. Thanks to additional foreign education and international practice, I look abroad for ideas that might help our system work better. You can find out more about me at http://law.ubalt.edu/faculty/profiles/maxeiner.cfm
My litigation practice background—which was mostly for foreign clients—is the theme of my first post.
What’s the difference between a domestic and a foreign client? When you touch on a hot button issue, e.g., crazy lawsuits, discovery, unjustifiable and unreviewable jury verdicts, or incredible costs, the American client will squawk, but will accept the U.S. lawyer’s consolation that, “sometimes it’s crazy, but that’s the price we pay for our legal system.” The foreign client—at least one from a well-functioning system—will not.
The foreign client will tell the U.S. lawyer, what do you mean? Your system is primitive and unjust. It’s crazy that someone can bring a lawsuit with no plausible legal ground. The foreign client will say, its expensive and idiotic that the adversary’s lawyer can make me produce thousands of documents with no apparent connection to the lawsuit. It’s unjust that the jury gives a verdict that makes no sense and no court can review the “facts” the jury found and its application of law. The foreign client will scream to high heaven when he or she wins: “what do you mean I won? After paying you, court costs and experts’ fees, I have only $30,000 of the $100,000 the defendant owes me. That’s not justice!
There’s another difference: the sophisticated foreign client will not only give the U.S. lawyer a piece of his or her mind, he or she will tell the lawyer how things can be done better. He or she will say, we don’t have many frivolous lawsuits, because the loser pay rules discourages most of them and active judges weed out the remaining ones. He or she will say, we don’t let parties demand any materials they like: judges have to approve materiality of evidence taken. We won’t let irrational decisions stand: decision-makers in first instance have to explain their decisions and those decisions are fully reviewable on appeal. In our system, a win is a win: losers pay the cost of winners. My right is to one hundred cents on the Euro and not discounted to third.
Practice for foreign clients challenges us to reform our courts, not with small steps to deal with the extreme, but with fundamental changes for the everyday. As Philip K. Howard’s Common Good organization argues, America is fixable, but it needs to Start Over. Foreign clients force American lawyers to reconsider what they are doing.
Read more: James R. Maxeiner, Failures of American Civil Justice in International Perspective (Cambridge University Press, 2011) http://www.amazon.com/Failures-American-International-Perspective-ebook/dp/B005IVX1I4 ; http://www.theatlantic.com/special-report/america-fixable; http://www.commongood.org/
7 Comments
Interesting, but I do not think that loser pays is the silver bullet to cut lawsuits. There are too many other differences, between US and other systems. Punitive damages are US only invention and caps on damages are quite important one too. Even if you add loser pays, the possibility of huge jackpot remains.
Loser pays just add an another entry barrier for those who does not have much money or for the most stupid lawsuits. The cost of court itself is a bigger problem. If it would not cost all my money to be sued, I would mind less.
And do not forget about regulations, US courts have regulatory functions that German of French systems do not have. Basically, juries in US get to decide what what is safe and what is not safe (coffee temperature).
French or German systems do not see such disputes, because safety and other regulations are decided by other institutions. Are you sure that US public would stomach that?
Someone has to decide whether the car is safe or not. In US it is post-fact courts, in other countries government in advance in form of regulation. Either the US will have more regulations than it has now, or it will have more lawsuits then other countries. (Or the US can decide that anything goes unpunished, but I would not support that.)
Preemptorily, my comment is addressing one aspect of the problem and is not meant to be any type of scholarly endeavor – it’s just an off the top of my head comment on a blog.
The American system would be much less expensive if not for the inability or will of judges* to make decisions within their discretion to make ex-parte, based on pleadings, briefs and memorandums, etc…
Some absurd [implausible] cases do get summarily dismissed; what comes to mind at the moment is a civil action some time back where the plaintiff was claiming some celebrity had purposefuly placed the celebrity’s likeness on the cover of magazines which were displayed where the plaintiff routinely traveled for the purpose of monitoring the plaintiffs activities. Obviously, this case is an outlier on the spectrum of absurdity or implausibility.
The point of my comment [presented for the benefit of my intellectual superiors] using this particular case to which I’ve referred is that although in that case a civil action action may have been able to be maintained for Intentional Infliction of Emotional Distress based on stalking or harassment, there was was no legal causal connection between the plaintiff’s claimed distress and the publication of the likeness of the celebrity. Similarly, a judge* at the trial level should be able to determine a legal causal connection between the injury to a plaintiff and the actions of a defendant and act in accordance with that determination. I believe at that point the loser should not pay.
*The asterisk is necessary because although I do believe a majority of judges are righteous, there exist many examples of corrupt judges that have acted contrary to the law for the benefit of a party. Moreover, my perception is colored by the law and judicial process of the State of Louisiana which is, ostensibly, far less precedently driven than those states the judicial process of which is based on English common law process.
Foundational American principles of open courts {to all litigants & observers] and jury trials…are not the problem.
Corruption of the American justice system by government politicians, government legal-bureaucrats, and the private legal profession is the problem.
Of course, European systems of magistrate directed courts and decisions … are more efficient — for the government rulers — but not for citizenry nor fundamental justice.
An effective citizen jury system is the only safeguard against government tyranny in a court system. Government always seeks full control of the population thru its “legal justice system”.
America lost its jury system/safeguard decades ago. Jury trials are now a rarity. Government prosecutors have immense, unchecked control to convict anyone for anything. The loathsome & corrupt practice of plea-bargaining rules our courtrooms… rather than citizens juries. Rare instances of jury trials are thoroughly corrupted by bizarre practice of Voir Dire, jury-stacking, and routine witness-tampering by government lawyers.
American “law” itself is incomprehensible, even to professional lawyers… much less citizens.
Many tens of thousands of laws & regulations litter our legal system… with hundreds of thousands of pages of legal implementations, novel interpretations, conflicting court decisions … completely obscuring any rational concept of rule-of law. Of course, one doesn’t need to know the law at all — Federal courts now routinely issue criminal convictions without the slightest hint of Mens Rea … a formerly bedrock principle of Anglo-American justice.
The U.S. justice system is now corrupt from top to bottom, not by original design– but by criminal action. The American legal profession thinks things are just fine overall.
That book sounds quite interesting. The blurb mentions South Korea and Germany as models for civil justice – are there any others? Off the top of my head, it seems like many other countries have civil law problems of their own. China, for example, has its extortionate trademark litigation. Russia is notoriously politicized, although the extent to which that affects civil, not criminal, litigation I am not sure (but one would assume it would). Ecuador looks weak after the Chevron case. I believe that Italy and Greece have both had some terrible internet cases, if memory serves; Greece, in any case, is known for being anti-business.
Let me try and play devil’s advocate and raise three potential difficulties:
(a) Nearly all the problems you mention are civil procedure issues that arose from judges themselves. Since judges created these problems, how would it be helpful to give them greater control over the process?
(b) The judiciary in the U.S. has become increasingly politicized, particularly over the last two or three decades. At the federal level, appointments are highly political; at the state level, judges are elected in campaigns that are increasingly intrusive. How does this problem compare to the situation in other countries? Sure, we don’t trust juries here – but can we trust our judges any more?
(c) The greatest barrier I see to rationalized judiciary has been that the incentives in any system allowing venue-shopping (normally the case internationally, and, within the U.S., amonst the states and different federal venues) always favor the plaintiff: the plaintiff can select the most-plaintiff venue, and it is to those venues that typically derive economic benefit from a pro-plaintiff set of rules. The most famous U.S. example is probably the E.D. of Texas, which has built a whole economy out of pro-plaintiff patent litigation. It is hard to reform a system that economically rewards everyone who does not cooperate: why would any plaintiff sue in Germany, say rather than the U.S. (or, if he has a weak case, in any district other than E.D. Texas for patents).
[…] it came as no surprise when I came across this piece from law professor James Maxeiner, who is guest blogging at one of my favorite law blogs, Walter Olson’s Overlawyered. He has […]
Asdfas asks some questions as devil’s advocate, so I will give some responses:
First, we should be open to learning from all systems. Still, some systems, civil law and common law, work better than others. Leading civil law systems include the French, the Dutch, the German, the Japanese, the Swedish and others. Second, to specific questions:
(a) Since judges created these problems, how would it be helpful to give them greater control over the process?
In the German system, judges focus on directing the process of applying law to facts. It is not their role to make the law, but to find how facts fit under the law. In Germany, the law (and appellate review) controls the process and judges within it.
(b) The judiciary in the U.S. has become increasingly politicized …. How does this problem compare to the situation in other countries? Sure, we don’t trust juries here – but can we trust our judges any more?
Most modern countries have professional career judiciaries. How politicized they are varies from country-to-country. I think many countries have thoroughly professional judiciaries that avoid politics. The judges have help from the system: law provides clearer boundaries. Political decisions are directed away from the ordinary courts to administrative agencies where there are both political and legal control of what are recognized as political decisions. The typical American judge’s self-image is far from that of a career bureaucrat who applies the law to facts. Changes would be difficult to bring about.
(c) The greatest barrier I see to rationalized judiciary has been that the incentives in any system allowing venue-shopping
Venue-shopping is frowned upon elsewhere, because the view is that a case should be decided the same everywhere. Where law is clear and process carried out competently, variations should not be great. In the German system, there are not a great variety of choices, but there are some. These possibilities are not sufficiently great to lead to the kind of interest or focus we know here.
Just a minor point and/or question. As I understand it, the US is a rarity in treating previous court decisions as binding precedents (English common law). In most of the rest of the world, a court decision may clarify some point which is unclear, but where the law is clear, court decisions must follow it. Whereas in the US, court precedents can drift farther and farther from the plain meaning of the law, leading to decisions that only make sense in the context of previous court cases.
This fundamental difference in systems vastly complicates matters, because one must not only understand the law, but also all relevant court precedents which may have affected the interpretation of that law. It also is a prescription for judicial activism, as courts essentially gain legislative powers. So it is not only that European (non-UK) law provides clearer boundaries, but that European law actually truly *is* a boundary on the courts.