Ethics Matters

Opinion: Private Justice And Other Short Takes

, The Connecticut Law Tribune

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Mark Dubois
Mark Dubois

I just returned from a regional conference of bar leaders. Mostly, I think this group gets together to plan get-togethers, but it doesn't hurt to hear that others have the same pain as you. For instance, it appears that other states are facing the "brain drain" with some of the best and brightest leaving the trial and appellate benches to join firms offering alternative dispute resolution practices. It seems ADR has now replaced jury trials as the method of choice to resolve corporate disputes.

After suffering the pain of discovery, which has now devolved into an insane process of each side dumping millions of documents on their opponent and then hiring legions of Indian lawyers or computer programmers to sift through them for the smoking gun, most corporate leaders are willing to pay a retired judge to end it all. It is fine for the clients, and a good business for the firms offering the service.

Unfortunately, the civil courts are increasingly left full of divorcing couples, foreclosing mortgagees and consumer debtors and creditors slogging through the endless mire of the new "self-represented" world. Talk to any judge in any state and they make it clear that they are sick and tired of their brethren leaving them to rake in the big bucks and draw their pensions while letting the courts handle the chaff. More than one judge has said "something has to be done."

Some state courts are exploring alternatives to the traditional model of dispute resolution. If eBay can resolve many tens of millions of buyer-seller disputes every year through simple on-line tools, why can't we resolve the dentist bills, credit card debts and other small potatoes that make up much of the small claims docket using the same tools?

If I can get married after getting a simple piece of paper from my town clerk, why can't I get divorced with the same level of administrative efficiency? Does everyone really need a judge to approve the agreement as to who gets the microwave and who gets the blender?

I heard John Broderick, the retired chief justice of New Hampshire, speak the other day. He points out that courts are losing market share to ADR and other providers and are increasingly becoming the last place anyone of substance wants to resolve a complex dispute. Window dressing like adding concierges and jiggering dockets will not correct the fundamental flaws of a system that is extremely labor intensive, slow, and perceived as inefficient. He urges radical rethinking of the model, from the front door to the back.

One thing everyone at the regional conference seemed to agree on is that change in our profession is proceeding at a pace never before experienced. Technology and the demands of business have made today's marketplace radically different from what it was just a decade ago. Courts and the legal profession are used to change that takes place over generations. Business now moves at the speed of electrons.Somehow, we need to adapt to a much more rapid pace of evolution.

Does every dispute need two parties, two lawyers and one judge? If parties want to be self-repped, they should get an administrative decision on the record instead of a full court proceeding. Lots of very sophisticated disputes are resolved without a courtroom full of judicial personnel.

Think we have a problem with law schools graduating two times as many students as there are legal jobs? Actually, we have it pretty good. I was reading about the oversupply of Ph.D.'s in the humanities, and their problems are way worse than ours. A few years ago, a student of mine explained that she was going to follow her wife, a newly-minted expert in English literature, wherever the job market might take her. Turns out there was something like one job in her area in the entire United States. Unfortunately, she did not get it.

I read recently that some liberal arts programs are trying to sell prospective students on their graduate degrees as a "portable" skill set, easily transferable to other areas such as business. I have heard the same thing from some law school deans explaining why they continue to overproduce graduates for a saturated market. It reminds me of when Newt Gingrich was asked what he did for the millions of dollars that Fannie Mae or Freddy Mac paid him. No, he wasn't lobbying. He was working for them as a historian. Every corporate entity of any gravitas needs at least one PhD historian. And maybe a lawyer or two.•

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