California Justice Ruvolo Asks: Should the Courts Stay in the ADR Business?
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The year's must-read California Litigation Journal article is Justice Ignazio Ruvolo's "It's Time to Re-examine the State of Civil Litigation in California." You have to be a member to read the issue on-line (here Crisis in the Courts?) but if you're not, find a friend who is and steal her copy.
Justice Ruvolo begins his concise history of the state of California's courts by suggesting that "if your bar number has fewer than six digits, then you doubtlessly witnessed firsthand the crisis that was the progenitor of the current state of civil litigation in California."
He not only proceeds to swiftly chronicle the way we got to mega-firms, six-figure first year associate salaries, and partner-free-agency, but also to question whether the Courts are doing the public a disservice by continuing to provide ADR services. A few thought-provoking excerpts below:
If the courts intend to stay in the ADR business for all time, some complain that they are not now competing with private ADR very successfully. One reason for this non-competitiveness is inadequate funding . . . . [C]ourts cannot afford to provide uniform training for mediators or to pay for mediation services and must rely on voluntary panels which compete with fee-generating private ADR for the time of neutrals. Some believe that the courts must necessarily impose a level of procedural uniformity for court-sponsored ADR that is inimical to the creativity and flexibility that is at the heart of successful mediation.
Of perhaps greater concern is the growing view that ADR-related activities by the trial courts are diverting money and resources away from the judiciary's core role: that of providing adjudicative processes to litigants . . .
Since ADR has truly become part of the legal system's culture, perhaps then the courts could safely leave ADR largely to the private sector. If the judiciary limits its role in ADR it will have the associated benefit of freeing judicial resources needed to shore up the court's adjudicative services. Case management, as it relates to ADR, might focus on locating those cases in the civil justice system that are suited for non-traditional resolution but which lack the financial resources to employ ADR. These are the cases that should be the beneficiaries of court-sponsored ADR.
(emphasis mine)
The litigation ills of which Justice Ruvolo speaks include "[t]he burgeoning use of law and motion, specifically motions for summary adjudication or summary judgment," "seeming lack of judicial control over the time that all segments of a trial take," and, "numerous, protracted depositions, extensive 'paper' discovery and the escalating use of expensive expert witnesses offering opinion evidence on parochial subjects."
All of this, he notes, makes litigation and trial too expensive and lengthy a process for any but the most well-heeled. And even they, he comments, eventually throw up their hands in despair and revert to ADR whether they want an adjudicative resolution or not.
That the judiciary recognize the problem, first, and begin a dialogue, second, is all Justice Ruvolo asks of us. "The judiciary," he writes:
"needs to engage now in a vigorous debate to determine whether the current approach to civil justice is efficacious. This examination should include consideration of whether the judicial system should continue to invest its resources in ADR for parties and matters which have the financial ability to use private ADR. We must also consider possible reforms needed to ensure prompt, and fir, trial dates, and cost-efficient pretrial and trial procedures for cases where ADR has been unsuccessful or is inappropriate."
After reading this article in full, you'll want to turn to attorney Paul Kiesel's paean to the Complex Courts, whose praises I also sing every time I'm given the chance. Kiesel's article singles out the Northridge Earthquake and the Galvanized Steel Pipe Litigations for special treatment, both reflecting my own litigation experience before the Complex Court's Presiding Judge Carolyn B. Kuhl and my LL.M externship experiences with Judges Carl West and Victoria Chaney.
The rest of the California Court system could do no better than following the lead of these fine Judges in creative ways to get to the heart of even the most complicated civil litigation and get it adjudicated in a timely and cost-effective manner.
