The Honorable David Brewer, Associate Justice, Oregon Supreme Court
My objective today is to discuss in broad terms the condition of, and prospects for, access to civil justice in Oregon’s state courts. Let’s start with a working premise, one that is often touted by the Chief Justice of the United States Supreme Court: 95% of the litigation in this country is waged in the state courts. Although exceptions abound, that raw percentage conceals the fact that, proportionately speaking, most complex civil litigation is processed in the federal courts. To be sure, the state court system, especially in densely populated urban judicial districts like Multnomah County, has its share of mass tort litigation, class action proceedings, cutting edge products liability cases, and the like. But the staple of state court civil litigation is reflected in the pulse of ordinary daily life–domestic relations, traditional personal injury, foreclosure, collection, property, and business disputes.
Now, the procedural setting for these typical state court cases may not be user friendly in other ways, but there are notable differences between the state and federal civil justice systems in Oregon that are relevant to our discussion today. Here are some examples. First, when it comes to the early or premature disposition of civil cases, Oregon has not followed the federal approach of permitting judges to weigh disputed evidence. In the federal system, the trial judge’s role in assessing evidence adduced in a summary judgment proceeding is more “evaluative” than the function of his or her counterpart in Oregon’s courts: in the federal system,”[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In Oregon state courts, by contrast, judges are generally less inclined to weigh or evaluate the strength of conflicting evidence in ruling on summary judgment motions; hence the denial rate tends to be higher, practitioners know this, and most observers believe that the summary judgment device is therefore less frequently used these days in state court.
Second, Oregon jurisprudence by and large has not sanctioned so-called speaking pleading motions for dismissal that are more common in Federal court. Although fact pleading, not notice pleading, is prescribed by the Oregon Rules of Civil Procedure, our motions to dismiss for failure to plead facts sufficient to state a claim for relief are not intended to test the sufficiency of the pleaders’ evidence, and experienced practitioners understand this. So we don’t have a litigation culture that tends to use pleading motions to force the early termination of civil cases.
Third, Oregon has always been contrarian in declining to adopt the full panoply of federal discovery tools. Primarily, but not exclusively at the instance of the civil plaintiff’s bar, Oregon has successfully resisted the clarion call of routine discovery of expert witness opinions as well as the use of interrogatories. That battle was fought and lost by the proponents of full federalized discovery when the Oregon rules were adopted in 1979, and, the same result was repeated in later skirmishes, so that there have been no recent serious attempts to revive the effort.
Other things being the same, we might infer from these differences between our procedural systems that access to civil justice is freer and subject to fewer barriers in the Oregon state courts than in the federal district court. But is that really true? I want to say first of all that we would greatly benefit from reliable empirical studies on the subject, but, if we measure access to justice in terms of being able to get to trial, if need be, without dying the death of a thousand electronic paper cuts, the answer may be no.
Let’s illustrate the problem with an authentic anecdote. In 1977, when I graduated from law school, it was common for a new lawyer in Lane County to receive a case file (usually pretty thin) from a senior partner that involved a small civil dispute, with maybe $2,000 or $3,000 at stake, and be told: “Go try it.” And the trial date sometimes would be set for that same week. Whatever discovery had been done would be scant; maybe a few witnesses would have been lined up. The firm might have $500 in fees into the case, and if you lost to the court or a jury because you didn’t have all the information the other side had, or you simply hadn’t prepared as well, maybe you reduced or waived your attorney fees and that was the end of it. There was no 800-pound malpractice gorilla to worry about, you hadn’t engaged in a mountain of defensive legal practice, and a lot of small cases got affordably tried. Not very artfully in many instances, but you learned how to try a case, how to think and act on your feet, how to adjust and shift, how to develop a coherent theme or narrative about your case, and, by and large, you learned to respect the wisdom of juries. In those days, roughly 11-12% of filed civil cases were tried to a judge or a jury. And we all kept book on verdicts; there was even a monthly report published in Lane County that catalogued cases, and verdicts, by type. And it was thick. Every trial lawyer had that information when we developed settlement proposals or sometimes voluntarily dismissed an improvidently filed case.
Today, that culture is so remote and unfamiliar as to seem naive and primitive to many practitioners and observers. That’s because a mere legal generation later, the prospect of going to trial without being armed to the legal teeth seems downright reckless to many. Consistently with that view, today, the trial rate in civil cases has declined to about 1-2% of filed cases, and there is little reason to believe that the hemorrhaging has stopped. These days, a busy civil trial lawyer is lucky (I use that word consciously), to get to trial once or twice a year.
As we think about the state of access to civil justice, should we care about these trends or do we bid good riddance to a less progressive era of justice? After all, trials are expensive and risky. And juries, and sometimes even judges, are perceived to lack the expertise to resolve complex disputes in an increasingly sophisticated and densely rule-bound legal environment. Why should we want a civil justice system that many think is no more than a ritualized game of chance when we can achieve more perfect justice by arbitrating or mediating before experts, having previously uncovered all the facts and law that will ensure an exhaustive exposition of the merits of the case?
Time doesn’t permit a full discussion, but here are a few reasons why, in one judge’s opinion, we should be very concerned about the arc of this trend. Mind you, nothing I’m about to say should be taken to belittle the artful and intelligent use of discovery and motion practice or the many salutary benefits of alternatives to trial. The vast majority of cases should be settled, as quickly and efficiently as possible with the most information that can be practically obtained, and trials, including jury trials, should be just one arrow in the litigation quiver. Instead, what I’m advocating for is a course correction to check a pendulum that has swung too far. And here’s why:
First, many claims for economic recovery–which, of course, is the aim of most civil litigation–involve unliquidated, noneconomic, or, in some cases, punitive damages. An important policy question to ask is who should be setting the yardsticks or benchmarks to measure the value of such claims, including for the purpose of guiding settlements. Should it be a community judgment, based in part on a broad sample of jury verdicts in similar cases, or, rather, should we rely on the opinions of presumed experts who are nether elected nor otherwise accountable to the public? Without an adequate reservoir of civil trials, we increasingly repose such critical judgment calls to a small, elite group of experts, and the public accountability of the civil justice system is commensurately eroded.
Second, is a very practical consideration: without trials, the bar’s trial skills atrophy or are never adequately developed. We risk becoming mere litigators, reluctant to take a prudent risk to go to trial when a precedent or benchmark flowing from a favorable jury verdict might otherwise be in the best interest of our clients, classes or groups that they represent, or advance the understanding of the law by creating precedent. Moreover, we lose valuable trial experience that helps advocates more objectively evaluate the settlement value of their cases.
Third, are the critical elements of public perception, trust, and confidence in the civil justice system. The great majority of citizens have little contact with that system. They get their sense of it from media portrayals and anecdotes. They may have waited in line to deal with a traffic ticket or a small claim, but those views of the system are deceptively narrow. Jury service, on the other hand, is part of the citizen’s compact with his or her government, in that it brings community values to the table of justice. Our constitutional framers preserved the right to jury trial and forbade the reappraisal of jury verdicts by a judge or anyone else if there is evidence to support the jury’s findings of fact. They understood that the covenant between the government and its people is a fragile one; it depends on civic engagement, and it is bilateral. Judges and courts pledge to follow the rule of law without fear or favor, and so does the public through jury service. Where law is applied to facts only by elites, no matter how enlightened, in settings that are removed from the scrutiny of a transparent public justice system, that mutual covenant is weakened, further distancing the people from their government.
Fourth, the opinions of some experts notwithstanding, a number of credible studies show that the wisdom of a collective body of fact finders, guided by understandable rules, is just as reliable, if not more so, than the judgment of an expert adjudicator, especially one whose work is not subject to meaningful judicial review or constraint. James Surowiecki and other social scientists have made the point in a number of publications, and it comports with the experience of many trial judges and trial attorneys. In my years as a trial judge in Lane County in the 1990’s, I tried scores of civil jury cases to verdict. I can assure you that, in all those trials, I can count on the fingers of one hand the number of cases where I thought that the jury got it wrong. And, each one of those cases involved a notable mismatch of legal skills between the parties’ lawyers–in other words, the fault was not the jury’s.
If properly instructed in understandable terms, and treated like active participants in the trial, jurors almost always take to the work vigorously, commit themselves to the rule of law, and they work hard to get it right. When this happens, the experience is rewarding to everyone, and the benefits of civic engagement are real. If you think that a case is too complex for a jury–and I readily acknowledge that some cases are better suited for other forms of dispute resolution–it may be because you haven’t figured out how to reduce that complexity to an understandable, compelling narrative that would be persuasive to any decision maker, let a alone a jury.
An effective trial lawyer–like the story tellers and theme weavers of many cultures throughout human history–is skilled in the art of teaching lessons through the coherent marshalling of facts and rules. This skill is vital to helping communities determine what justice is and to facilitate its evolution in changing circumstances. And jurors are uniquely positioned to play a crucial role in that process.
For all these reasons, and for others that we don’t have time to explore in this limited space, we need a balanced civil justice system. I am an ardent proponent of appropriate dispute resolution, but the trial, and especially the jury trial, should be an affordable, accessible option for litigants that judges embrace as well, not an anachronism or a grudging anomaly. Otherwise, our state trial courts will increasingly and predominantly become forums where pro se domestic relations matters and misdemeanors are tried, and those who can afford to bypass the system do so. Carried to an extreme, such a two-tiered justice system is really an economic caste system, and it is antithetical to the equally accessible public justice system that our framers envisioned.
In her recently published thoughtful book, Rebuilding Civil Justice, former Colorado Supreme Court Justice Rebecca Kourlis laments the triggers, including excessive discovery costs, that have made the trial option unaffordable and subject to terminal delay for most people. We need to change that while we can. The greatest challenge for this and the next generation of lawyers and judges is to construct a civil justice system that people can reliably use and afford. Here are a few ideas that can help:
(1) In 40 years or less, the litigation pendulum has swung from a pattern of trial by ambush, which doesn’t reliably produce justice, to belt and suspenders litigation where discovery and motion practice are often used merely because they are available, not because they are cost-effective ways to level the field of helpful information. In Oregon, we’ve recently tried to shine a light on that tendency and to provide an alternative by creating a set of trial court rules that are intended to encourage a more streamlined approach to civil litigation. Under that model, parties can get a certain, reliable, trial date within four months after the date they opt-in to the program, if they agree to a six person jury and settle on a plan of limited motion and discovery practice. So far, this option has been under-utilized, and it is difficult for many judicial districts to implement in the face of chronic budget cuts and resource shortages. But, there is hope that it will take hold by making smaller stake cases more economically viable to try where litigation to the hilt would discourage the parties from initiating or defending them in the first place.
(2) We must acknowledge that some cases truly are more complex; they require special care and attention. We need a cohort of experienced civil trial judges available to manage and, if necessary, try these docket buster cases anywhere in the state. Oregon’s recently-adopted Complex Litigation Court program, embodied in Uniform Trial Court Rules Chapter 23, is designed to accommodate those cases. Having a judge who knows how to manage pretrial practice, how to keep the cases moving forward evenhandedly and affordably, is a critical consumer service for the state courts to provide in a balanced justice system. We need to continue utilizing and improving this program, which has had some notable early successes, as part of the effort to stem momentum toward a two-tiered system.
(3) Courts need to make a concerted effort to budget and manage their work more effectively. This involves using sound business practices, guided by institutional performance measures and valid workload assessments, in order to intelligently ration scarce resources and to build credibility with our legislative funders and the public. At the same time, we must recognize and explain that the ultimate distinction between a profit-centered enterprise and a functional public justice system is the promise of justice, which can never be measured solely in dollars and cents. And we need to persuasively demonstrate to our stakeholders through credible economic impact models that adequately funding the courts will actually promote economic and social welfare, and that public justice shouldn’t be treated as just another unwelcome cost of government.
(4) Lawyers need to recommit to providing affordable legal services to the middle class, not just to the indigent and the wealthy. That means creating and updating a plan to manage and try every case economically; to consciously and rationally limit motion and discovery practice. To discuss the risks of such decisions with their clients so as to minimize the perceived need for wasteful, defensive litigation measures that too often propel the cost of justice without advancing the cause of justice. We can’t afford perfect justice; sometimes to get any measure of justice, we have to take prudent risks by limiting expenses. This isn’t easy. Sometimes your opponent will try to drive you into the dirt by outspending you or inundating you with process. Judges need to be prepared to intervene when that happens. And, as Justice Kourlis suggests, we should reconsider our procedural rules, as other state already have begun to do, so as to objectively evaluate whether and to what extent those rules have contributed to the problem and require revision.
Trials, especially jury trials, are guaranteed to provide a check on the power of government and judges. They give life to our form of government, which eschews domination by elites of any stripe. The good news is that, instinctively, we know that’s true, and we have a chance to do something about it. I’m optimistic that we can find an Oregon way to recalibrate our civil justice system, to make the pursuit of justice more affordable to people within a time horizon that makes it effective. To accomplish this will require a unique collaborative pact between the bench, the bar, and the academic community that is training the next generation of lawyers to reaffirm the value of our constitutional guarantees. And it will require a serious commitment to constructively and systematically reconsider the way that we have learned to litigate in the past generation.
It’s our time and our chance. Let’s not waste it.