Civil Justice System Research Articles

Whose Truth? Objective and Subjective Perspectives on Truthfulness in Advocacy

A lawyer confronts many features of the world that are given, inflexible, and must simply be dealt with; at the same time she has latitude for creativity, for the exercise of skill and judgment toward the realization of the client’s ends. Although in law school it may seem that the law that is open-textured, manipulable, and the wellspring of creative lawyering, in practice the facts do not come pre-packaged and accepted as true for the purposes of an appellate court’s review, but are highly contingent and the product of the interaction between a lawyer and witnesses, documents, and other sources of information. It is exactly in this respect, however, that the theory of legal ethics is relatively under-developed. In recent years, legal ethics scholarship has changed its emphasis from ordinary first-order morality to a consideration of issues in democratic theory and legal philosophy. Focusing on the legitimacy of norms established through democratic political processes has yielded a robust theory of ethics with respect to the content of law: Ethical lawyering requires understanding the content of legal rules not from the Holmesian bad man perspective of “what can I get away with,” but from the point of view of the law as it would be understood by an impartial member of an interpretive community. The question to be considered in this paper is, if one believes that being an ethical lawyer has something to do with democratic legitimacy and the authority of law, what practical stance must a lawyer take with respect to facts? The answer to this question depends on the perspective one takes on the relationship between the role of lawyers as advocate and the contribution made by advocacy to legal legitimacy. Almost every scholar who has considered the problem of connecting ethical prescriptions for lawyers with considerations of political legitimacy, including Geoffrey Hazard and Dana Remus, Daniel Markovits, William Simon, and David Luban, has argued for a subjective perspective, so that the most important criterion for legitimacy is whether the legal system has taken into account the story the client wishes to tell. Using several case studies, I argue in this paper for the unpopular, unloved objective perspective, with the central criterion of legal legitimacy being what is the case, based on both law and facts – i.e. whether the client does or does not have a legal entitlement to do what is in her interests. Political legitimacy depends on adhering to ideals of truthfulness in politics. The alternative, subjective perspective on the relationship between legitimacy and advocacy, although emphasizing the extremely important value of human dignity, ultimately leads to a cynical, bullshitty (in Harry Frankfurt’s sense ) style of advocacy that undermines its own claim to political legitimacy.My argument is not that lawyers have a direct obligation to seek the truth. Our adversarial system of litigation presupposes that each party and her advocate will have their own perspective on the truth and be permitted to argue for it, and introduce evidence in support of it, at trial. The general theoretical orientation of the adversarial system toward partisan perspectives on the truth has, however, tended to make lawyers forget that they have some responsibility with respect to the truthfulness of litigated matters. Following Bernard Williams, I distinguish between truth with respect to some belief (“it is true that P,” where P would be something like “the defendant robbed the victim,” or “the plaintiff was standing right here when the accident occurred”) and truthfulness as an ideal that may apply to a process or institution of government. This emphasis on truth as a propositional matter has obscured the ethical analysis that should apply to practices, such as evidence gathering, the conduct of civil discovery, witness preparation, and the examination of witnesses at trial. The legitimacy of the civil justice system depends on its being a process of reason-giving, which in turn depends on the reasons having something to do with what actually is the case, as a matter of fact.

Constitutional Considerations: Government Responsibility and the Right Not to Be a Victim

Within a democratic society, citizens are provided with certain rights and liberties. Among those rights and liberties is the right not to be a victim. In this article, the author examines and analyzes the growing concern for the protection of victims of crimes. Recent legislative enactments have been designed to alter the role of the victim in the civil and criminal justice systems by defining and implementing a series of victims' rights. The author concludes by recognizing that one of the most important duties of government is to provide for the physical safety of those within its jurisdiction. To implement this duty, the interest and consequential standing of the victim must be recognized within the American court system.

Relief in Small and Simple Matters in Belgium

This article is based on a national report that was written for the XVth World Congress of the International Association of Procedural Law that was held in Istanbul in May 2015 and that focused on Effective Judicial Relief and Remedies in an Age of Austerity. It first of all sketches the general judicial context in Belgium and some of its relevant features: the judicial organisation, the goals of the civil justice system, the course of an ordinary civil lawsuit, the role of the court, and the litigation costs. Next, a detailed and critical overview of the current and future procedures that offer relief in small and simple matters is given. The current summary order for payment procedure, which was introduced in 1967, did not meet its goals. The article concludes that a new trend is emerging in Belgium, namely keeping small and unchallenged claims outside the judiciary and providing for cheaper and more efficient alternatives.

Having a Say: 'Access to Justice' as Democratic Participation

Despite the pervasiveness of civil law in Western societies and the impact of its judicial creation and administration, citizens are too often bystanders in litigation; they are either represented by lawyers, and/or increasingly required to resolve these problems themselves without the assistance of legal representation. In terms of access to justice policy and initiatives, the response to this critical problem represents one of the most contested issues on the law-and-society agenda and there have been continuing debates over the meaning of access, its objectives, and its success. The question that arises in this regard is pertinent – can access to justice initiatives empower individuals to meaningfully participate in the legal decisions and processes that affect their lives and by extension, the democratic process? This paper critically examines whether, given the structure of the civil justice system, participation by self-represented litigants is a legitimate or viable foundation for access to justice initiatives.

The Impact of the Economic Downturn in the Spanish Civil Justice System

textabstractThe Spanish justice system has been shaken by the econom- ic downturn as many other institutions have. This article addresses in the first place some statistical data that shed light as regards to the number of judges and the costs and length of the procedure in Spain. These figures help to understand, in the second place, the impact of austerity measures on the judiciary, namely, the freeze on the hiring of judges and the establishing of high court fees. While they mainly concern the supply side of justice services, others such cost reductions in legal aid have had, in the third place, an impact on the demand side, driving many citizens to social exclusion and to resorting to self-defence mecha-nisms. The final part of this article addresses some remedies that may alleviate judiciary’s workload, but that fall short of doing it. All in all, the Spanish justice system seems to require a holistic approach to patch up edges, but one in which the role of judge-made justice in a democratic society has to be central again.

Austerity’s effect on English Civil Justice

textabstractThis article considers the effect of austerity-induced public spending cuts on the English civil justice system. In doing so it initially examines two fundamental changes engendered by the effect austerity has had on civil court fees and legal aid: first, a challenge to the traditional commitment in English procedure to adversarial process, and a concomitant increase in inquisitorial or investigative processes; and secondly, the growth in use of unqualified individuals to act as advocates in court for individual litigants who are unable to afford legal representation. It then turns to consider what, if any, effect austerity has had on simplified processes available in English civil procedure.

From punishment to protection: Containing and controlling the lives of people with disabilities in human rights

In the last decade, criminology has begun to raise concerns about people with disabilities’ problematic relationship with criminal justice systems. Yet we have ignored their problematic relationship with civil justice systems; a relationship which has seen people with disabilities subject to a range of punitive civil controls in the wake of their deinstitutionalisation. This article draws attention to one such punitive civil control, the Supervised Treatment Order regime in the Australian state of Victoria. Drawing on Foucault and his interlocutors’ work on ‘governmentality’, and engaging with Cohen’s concept of ‘magical legalisms’, the article reveals how this civil regime has become an effective mechanism for governing the lives of sex offenders with disabilities post their release from criminal justice systems. The article illuminates how this unusual function of the regime has not only been obscured from criminology’s view through claims of legislative intent, but further reconstituted as protective of people with disabilities’ human rights. The article concludes by discussing the implications of criminology’s absence from engaging with such punitive civil orders for people with disabilities and the wider penal field.

Litigiousness in Australia: Lessons from Comparative Law

How litigious are Australians? Although quantitative studies have comprehensively debunked the fear of an Australian civil justice system in crisis, the literature has yet to address the qualitative public policy question of whether Australians are under- or over-using the legal system to resolve their disputes. On one view, expressed by the insurance industry, the mass media and prominent members of the judiciary, Australia is moving towards an American-style hyper-litigiousness. By contrast, Australian popular culture paints the typical Australian as culturally averse to formal rights assertion. This article explores the comparative law literature on litigiousness in two jurisdictions that have attracted significant scholarly attention — the United States and Japan. More specifically, it seeks to draw lessons from this literature for both understanding litigiousness in modern Australia and framing future research projects on the issue.

The Fundamental Right to a Reasonable Procedural Time Between Efficiency and Guarantees

This paper explains how Brazilian civil procedural law deals with the fundamental right to a reasonable length of procedure, balancing it between the search for efficiency and the protection of procedural guarantees. It establishes a link between procedural efficiency and the quality of judicial decisions, pointing out that the demand for qualitatively good decisions comes from the Brazilian Constitution. Reasonable procedural time is considered an important part of a constitutional model of civil procedure, which is composed by some principles that are constitutional guarantees of fair proceedings, such as due process. The author asserts that some important changes are required in Brazilian civil justice system to make efficiency possible without any harm to procedural guarantees, allowing civil proceedings to take place in a reasonable length of time. Some accelerating mechanisms are discussed, such as filters on access to higher courts and the anticipation of judicial protection by provisional decisions.

The Crux of the Matter: Funding and Financing Collective Redress Mechanisms

Any jurisdiction wanting to introduce a collective redress mechanism will be confronted with the same design options: Will its scope be trans-substantive or restricted? Who will have standing? How will the class be notified? Will it be an opt-in or opt-out regime? And what remedies will be available? However, the question of how the mechanism will be funded and financed transcends all these issues, simply because without appropriate and clear funding rules, they will remain a dead letter. Funding rules are an essential precondition for the proper functioning of any civil justice system. In that sense the funding and financing issue is the crux of the matter, because it goes to the heart of the class action system. This paper maps the various funding options and assess their pros and cons in a collective litigation context. The leitmotif is the recent 2013 EC Recommendation on collective redress mechanisms. Attention is paid to the funding and financing by the class representative, by the class counsel and by a third party (public funding and legal aid, legal expenses Insurance and third-party litigation funding). The paper concludes that there is no clear-cut answer to the question of how collective redress actions should best be financed. The most sustainable solution seems to be a mixture of options.

The Italian Administrative System: Why a Source of Competitive Disadvantage?

The Italian administrative system is currently perceived as one of the main obstacles to a higher growth of the productive system. We argue that some causes of this ineffectiveness are deeply rooted and date back at the unification: a missing strong administrative tradition; an (excessive) political influence over the administration; the relevance of the juridical culture. We discuss in detail one specific product of the administration, its civil justice system, its inefficiencies over time and the potential reasons behind it. We then detail how some reactions to these inefficiencies have been in some cases the sources of further problems: an excessive number of (often too complicated) laws and administrative acts; the growth of administrative corruption; the creation of public agencies formally external to the administration. It is possibly in some of these elements that the reasons for the difficulties met by the reform processes initiated since the 1990s should be searched.

The Discovery Sombrero, and Other Metaphors for Litigation

Academics, judges, and policymakers know little about the timing, volume, and cost of discovery in our civil justice system. This information deficit is most severe with respect to the most salient discovery-related issue for practitioners today: preservation — the duty to preserve relevant data when litigation is reasonably anticipated. This collective ignorance feeds uncertainty at both the policy level and at the doctrinal level. In this paper, I present original, empirical research on the nature and costs of preservation and discovery. This research is the first, and to date only, systematic effort to measure the extent and costs of preservation activity. I describe key findings and propose three new stylized facts: the discovery sombrero, the preservation iceberg, and the long tail of litigation costs. I then provide examples of how these stylized facts help inform doctrinal and policy questions on preservation and discovery, including the choice between common law development and federal rule-making, the choice between reliance on legal reform or technological innovation to control costs, and the question of how to tailor the Federal Rules of Civil Procedure to heterogeneous cases without sacrificing the Rules’ commitment to transubstantivity.

English Pragmatism and Italian Virtue

This article provides a comparative analysis of the Italian and the English regimes of improperly or illegally obtained evidence (hereafter IOE) in civil law cases. We will use the term regime to indicate the system of rules and juridical practices that regulate IOE. In the past decade, the Italian and the English regimes of IOE have been adapting to new institutional and economic demands. Until recently, the Italian civil justice system mechanically assumed that IOE was inadmissible. In contrast to the Italian regime, IOE was normally allowed in English courts. However, a series of court decisions has changed the assumption of admissibility of IOE. In England and Wales (the two nations share the same civil procedure system), the introduction of the Civil Procedure Rules 1998 (hereafter CPR) and the Human Rights Act 1998 (hereafter HRA) has instead imposed a duty to exclude an IOE that has been obtained as a result of an outrageous violation of the European Convention on Human Rights. This article contends that the two regimes of IOE are moving into an untested terrain, albeit from different starting points, and that a comparative analysis might help clarify the relation between the admissibility of IOE that triggers protected rights, such as Article 8 ECHR, and the functioning of the civil justice system. The article is divided in three sections preceded by an introduction and followed by a conclusion. The first two sections discuss the English and Welsh as well as the Italian regimes of IOE. The third section focuses on how the two legal systems seek to strike a balance between the violation of rights and the compelling demand for efficient civil trials.

The Place of Mediation in England & Wales in 2014

With both the increasing significance of mediation in civil justice systems and the continuing need to articulate and validate a process conducted confidentially, this article summarises how a typical commercial mediation is conducted, and what has made mediation attractive for resolving commercial disputes; it reviews official support for its development, discussing the degree to which use of mediation can be encouraged by judicial order and use of costs sanctions; it also examines the impact of the EU Mediation Directive on English civil practice, distinguishes mediation from arbitration, and speculates about future developments.

The role of reparative justice in responding to the legacy of Indian Residential Schools

The Indian Residential Schools Settlement Agreement (IRSSA) is historic in nature and ambitious in its goals. With an estimated value of approximately $5 billion dollars, it aimed not just to settle the massive volume of litigation that the IRS legacy suddenly generated in the late 1990s and early 2000s but also to achieve a ‘fair, comprehensive and lasting resolution’ to the grievous, large-scale historic wrongdoing associated with Indian Residential Schools (IRS). In order to achieve this, the IRSSA established a number of innovative remedies and institutions. This paper seeks to illuminate those lesser-known but vitally important parts of the IRSSA that have compensation as their aim. As outlined here, those institutions can only be understood against the backdrop of the civil litigation system that gave rise to them. The civil justice system of the 1990s showed rather surprising willingness to dismantling some of the key obstacles that prevented IRS cases from getting to court. Nonetheless, the civil justice system retained many critical shortcomings that would have proven fatal for IRS plaintiffs. The compensatory elements of the IRSSA, such as the Common Experience Payment (CEP) and the Independent Assessment Process (IAP), were designed precisely to respond to and correct for these shortcomings. As such, they are an extremely important complement to the more well-known elements of the IRSSA like the Truth and Reconciliation Commission. This paper suggests that achievement of the overall goal of the IRSSA will depend in a very important way on the success of the reparative elements in achieving their compensatory goals.

The Civil Procedure Rules 1998 – An On-Going Revolution? Their Strengths and Shortcomings

This article examines various innovations within the modern English civil justice system. In particular, the English procedural code, CPR (1998) Rule 1.4, requires the court to further the overriding objective by `actively' managing cases. This radical innovation gave English judges a new role. Before 1999 most judges had not become involved systematically and actively in case management. They had instead prided themselves on being detached from the preparations for trial other than to respond to applications brought before them by the parties.

Summary of Empirical Research on the Civil Justice Process: 2008-2013

In 2007, fueled by concerns over declining access to civil justice, the American College of Trial Lawyers (“ACTL”) Task Force on Discovery and Civil Justice (“Task Force”), in partnership with IAALS, embarked on a journey to define and address the problems of delay and cost in the system. While the mission was anything but new, the Task Force met it with new fervor. Each member had counseled countless individuals and businesses leaders who, when facing a legal issue upsetting in its own right, also had to face a difficult choice between walking away from their cause at some point or becoming overwhelmed by the court process. Based on extensive personal experience, it was becoming increasingly clear to the Task Force that the American civil justice system, considered a fundamental aspect of our democracy and a model for the world, struggles to meet the needs of litigants today appropriately, including the needs of our family members, friends, neighbors, shops, restaurants, and charities. It also was becoming increasingly clear that something should — no, must — be done about it.Following extensive background research, a survey of ACTL Fellows, and serious discussion and debate, the Task Force issued a “Final Report” in 2009, containing specific recommendations for improving the civil justice process.The Task Force’s work sparked a national conversation about the future of our civil justice system, further research on the litigation process by a number of individuals and organizations, and the establishment of numerous pilot projects in state and federal courts around the country.These efforts are ongoing, and there is much more research to come in the next few years and beyond. Nevertheless, it is useful to pause and take stock of the data collected, analyzed, and disseminated since 2008, the onset of the Task Force’s work. As procedural decision makers look to determine the shape of civil justice to come, they will be asking, “Where do we go from here to shape a just, speedy, and inexpensive process?” In making those decisions, it is critical to ask, “What have we learned in the last five years or so?”

Expert Witness Blinding Strategies to Mitigate Bias in Radiology Malpractice Cases: A Comprehensive Review of the Literature

Like all physicians, radiologists in the United States are subject to frequent and costly medical malpractice claims. Legal scholars and physicians concur that the US civil justice system is neither precise nor accurate indetermining whether malpractice has truly occurred in cases in which claims are made. Sometimes, this inaccuracy is driven by biases inherent in medical expert-witness opinions. For example, expert-witness testimony involving "missed" radiology findings can be negatively affected by several cognitive biases, such as contextual bias, hindsight bias, and outcome bias. Biases inherent in the US legal system, such as selection bias, compensation bias, and affiliation bias, also play important roles. Fortunately, many of these biases can be significantly mitigated or eliminated through the use of appropriate blinding techniques. This paper reviews the major works on expert-witness blinding in the legal scholarship and the radiology professional literature. Its purpose is to acquaint the reader with the evidence that unblinded expert-witness testimony is tainted by multiple sources of bias and to examine proposed strategies for addressing these biases through blinding.

Making risk and dangerousness intelligible in intellectual disability

In the wake of deinstitutionalisation, a range of punitive, restrictive and coercive measures for controlling the lives of people with intellectual disabilities have emerged from criminal law. This article critically engages with one of these measures, the Australian state of Victoria's, supervised treatment order (STO) regime. Drawing on STO decisions, this article argues that, during STO tribunal hearings, the margins of criminal and civil law converge, and the margins of law and medicine further conflate such that the medical diagnosis of a person's intellectual disability becomes a legal ‘diagnosis’ of that person's innate and ongoing risk and danger to society. That is to say, during STO tribunal hearings, the characteristics and features which typically contribute to medical diagnoses of intellectual disability become the characteristics and features which are now used to ‘diagnose’ the presence of risk and dangerousness in legal subjects. The article explores the implications of these converging diagnoses for our understanding of people with intellectual disabilities' engagement with civil and criminal justice systems, the fluid nature of medico-legal boundaries, and the shifting nature of civil and criminal institutional controls over time.

Third-Party Litigation Funding: Current State of Affairs and Prospects for Its Further Development in Spain

Abstract: Third-party litigation funding (TPLF) is a promising and fascinating practice that is receiving increasing attention. However, TPLF is still a novel institution, and hence there exists certain controversy as to what it actually stands for. In order to bring some clarity in this regard, a definition of TPLF will be provided. This definition will be used to compare TPLF with other ways of funding litigation disputes, to investigate its origins, and to examine its advantages and disadvantages. Nonetheless, the main purpose of this article is to shed light as to two supplementary issues. On the one hand, this article will show what is the current state of affairs of TPLF. For that purpose, a comparative analysis of several countries will be provided. This will show that TPLF is commonplace in common law countries such as Australia, though virtually non-existent in civil law countries. On the other hand, in order to determine the prospects for TPLF to expand into jurisdictions in which it has not developed so far, Spain will be taken as an example. This analysis will show that the possibilities for TPLF to grow in Spain are rather promising as TPLF may help overcome some of the challenges currently faced by the Spanish civil justice system. In addition, TPLF seems to be legally viable under Spanish law. Resumé: Third-Party Litigation Funding (TPLF) est une pratique prometteuse et fascinante, qui reçoit une attention croissante. Cependant, le TPLF est encore une institution novatrice, à ce titre il existe un certain nombre de controverses concernant ce qu'il représente. Afin d'apporter de la clarté à cet égard, une définition du TPLF sera fournie. Cette définition sera utilisée pour comparer le TPLF avec d'autres moyens de financement de litiges contentieux, pour rechercher ses origines et examiner ses avantages et inconvénients. Néanmoins, le but principal de cet article est de faire la lumière sur deux questions supplémentaires. Dans un premier temps, cet article montrera quelle est la situation actuelle du TPLF. Pour cela, une analyse comparative de plusieurs pays sera établie. Elle démontrera que le TPLF est monnaie courante dans les pays de common law comme l'Australie, et pratiquement inexistante dans les pays de droit civil. Dans un second temps, afin de déterminer les perspectives du TPLF de se développer dans les juridictions où il n'est que peu implanté, l'Espagne sera prise comme exemple. Cette analyse montrera que les possibilités pour le TPLF de se développer en Espagne sont prometteuses puisque le TPLF peut permettre de surmonter certaines difficultés rencontrées actuellement par son système de justice civile. En outre, TPLF semblent légalement viables en vertu du droit espagnol.