Search Results

America is the litigation superpower, or at least it seems to think it is. It berates itself for having more lawyers, more laws, and more lawsuits than any other place on earth. As a consequence of this self-perception, over the last generation it has periodically flailed itself for these supposed national characteristics. This chapter begins with a basic primer on the relatively elaborate apparatus available for civil litigation in America, and follows that with a sampler of statistical information about American civil litigation. It then provides a somewhat more expansive historical overview of the procedural reform efforts of the past, focusing principally on the procedures used in the US federal courts, as a prelude to profiling problems of the cost of delay and the legal retrenchment that has occurred in recent years. After separate consideration of case management, it closes with some reflections on prospects and portents.

Over the past century or so the rate of civil litigation has grown faster than the U.S. population--but slower than the Gross Domestic Product. While both state and federal civil filings have increased substantially, they have not kept up with economic growth. As a consequence, although the per capita rate of litigation has grown, compared with economic growth it has dropped. That civil litigation is driven by lawyers rather than by judges (as it is in some other legal systems). Those lawyers bear responsibility for gathering evidence and presenting it to judges and juries. Compared with 1900 today we have far more lawyers per capita. Yet, the same period, has seen an increase in the GDP dollars per lawyer; measured by this metric we have become less, not more litigious. Those lawyers settle most civil lawsuits. When they go to judgment the amounts at stake hover between $25,000 and $50,000 and take about two years from start to finish. Those averages mask a very small subset of cases with millions at stake--cases that dominate headlines but not the everyday life of lawyers and courts.

The present system of dispute resolution in Australia cannot cope with the increase in the number and classes of litigants and in the complexity of litigation. The system is too labour intensive for that. And because it is too labour intensive it is too costly; in most cases in the system the costs of those that go to trial are disproportionate to the amount or value in dispute and, for the losing party of average means, they may be ruinous. Reducing the cost of dispute resolution must therefore be the primary objective of civil justice reform. This chapter discusses the main defects in the existing civil justice system and how they are being or should be remedied. It begins by describing the existing system and its history. It is argued that the starting point of civil justice reform in Australia must be the acceptance by lawyers and judges of a new concept of just dispute resolution; one which involves greater frankness between disputants, which is less adversarial, and which accepts that costs, the rights of others, and the public interest are relevant considerations. It is only if this is accepted that a system will evolve which resolves disputes without undue delay, at a reasonable cost, and with little or no diminution in the quality of result.

This chapter focuses on the transformations in civil procedure rules and litigation practice of post-socialist states of central and eastern Europe, observed mainly through the example of Poland. They are presented from the perspective of the ethos of the Woolf Reforms. It also demonstrates the importance of legal culture and litigation practice for the implementation of these changes. Particular emphasis is placed on the role of the judiciary in civil litigation: it has been revolutionized by the Woolf Reforms and it has undergone transition in post-socialist states.

This chapter starts with a description of the Dutch system of civil procedure. It then discusses Dutch courts and caseload issues, specific social institutions and the related proceedings, litigation avoidance in Dutch society and culture, patterns of litigation in a litigation-avoiding society, procedural issues, the legal profession, and alternative modes of dispute resolution. Overall, the Netherlands experiences less litigation, and fewer problems with court congestion, than its neighbours, not because there is no demand for litigation, but because the supply side of the legal profession and social institutions have responded to the existing incentives to create alternatives to the court process that work better and faster at less cost to the litigant.

This chapter considers the roles and purposes of the institution of civil litigation in the 21st century. In England, civil litigation incorporates all forms of litigation except the criminal; proceedings against public authorities including those by way of the application for judicial review and proceedings relating to taxation are classed as civil. It is a widely shared opinion that the purpose of civil litigation is the resolution of civil disputes. This chapter argues that its origin lies in the need for the provision by the state of a non-violent alternative to self-help. That need has long ceased to exist, but nevertheless civil litigation retained until recently a virtual monopoly of organized dispute settlement.

This chapter begins with a description of the characteristics of Spanish civil procedure. It then discusses the Spanish hierarchy of the courts, sources of civil procedural law, the basic Spanish procedure, the Spanish legal profession, appeal procedure, the nature of civil litigation in Spain, principal problems of civil justice, legal aid, and alternative modes of dispute resolution, and the Civil Procedure Bill (1997).

This chapter begins with a description of the Portuguese system of civil procedure. It then discusses the problems of civil justice, reforms in the civil jurisdiction, and alternative modes of dispute resolution.

International law lacks muscle or, in other words, enforcement power; bones, that is, institutional infrastructure and capacity; and even heart, namely, the capacity to face up to some of the largest issues of our times. Civil litigation in domestic courts offers tremendous potential for redressing international wrongs, loosely defined to be of two types: cross-border matters; these can be addressed either by applying rules of international law, or solely through domestic laws as applied across borders and acts that take place strictly domestically but that nonetheless violate international law, even if their physical aspects are limited to a small inquisition room. Measures designed to improve upon the present conditions include: existing educational efforts for current and future practising lawyers should be increased, and also broadened to include legislators and judges; the collection of evidence in one country for use in litigation in another should be facilitated; and heads of jurisdiction should be broadened: for instance, often the jurisdictional peg is presence of the defendant's offices or person within the forum; property, however, can be an alternate base of jurisdiction.

This chapter addresses the significance of civil procedure in private law’s treatment of civil wrongs. It begins by canvassing contemporary private law theory, focusing in particular on the civil recourse theory of tort law. The chapter notes that civil recourse theory incorporates assumptions about private law’s characteristic responses to wrongs, each of which is, ultimately, an assumption about the law of civil procedure. They include assumptions that civil litigation is strongly adversarial, that it provides plaintiffs with an opportunity to confront defendants for civil wrongs, and that it culminates in an authoritative judicial declaration of where things stand between the parties as a matter of right. This chapter also points out that civil recourse theorists tend to treat these features of procedural law as fixed and essential elements of tort law. But close examination shows this to be a mistake. The rise of routinized settlement and arbitration, among other things, suggests that private law’s procedural responses to civil wrongs are varied and changing, often in ways inconsistent with interpretations given by leading theorists.

This chapter focuses not only on European civil procedural law, but it also explores its relations with public international law. This explains rests on the following observations. On the one hand, European procedural law has largely shifted away from the traditional concepts of international law relating to cross-border litigation (especially in the field of judicial assistance). However, there are still some areas in civil litigation where the traditional concepts of public international law are fully applied. On the other hand, European civil procedural law attracts ‘political litigation’ which was traditionally barred by concepts like State and diplomatic immunity, public policy, and the political question doctrine. As these concepts have been — at least partly — modified in the European Judicial Area, litigants are engaging in ‘borderline cases’ seeking redress in situations traditionally precluded by public international law. Against this background, the chapter explores whether European procedural law offers new prospects for the private enforcement of human rights.

This chapter discusses transparency in the real world of civil litigation. It first lays out the case for seeing civil claims settlement as a market, followed by an explanation of how little we know about how bad our pricing information is. After a brief look at how our preoccupation with other, “flashier” forms of opacity in civil settlements has diverted attention from the real problem, it proposes a way to obtain accurate pricing information and reviews some obstacles that lie between here and the realization of that solution.

The guilds were essential allies in the operation of the regulatory system, which can be considered an early-modern example of a public/private partnership. Not only were the guilds the chief ‘customers’ of the court, providing much of the funding for public officials, they also had the authority to enforce market rules in their own sector. The price paid for their cooperation was the confirmation of their privileges and the division of the economy into separate sectors. This chapter emphasizes the functional role of guild litigation as opposed to the rhetoric that has surrounded it. From the point of view of a ‘command economy’, guild litigation served no useful purpose. The government considered it to be a waste of money, ‘petty disputes’ of no real significance.

This chapter begins with a brief discussion of the primary aim of the book, which is to analyse the courts' power to stay criminal proceedings which are deemed as an ‘abuse of the process of the court’. It then discusses the origins of the doctrine and its use in civil litigation, entrenchment of the doctrine in the criminal sphere, the nature of a stay, and aspects of criminal justice. A brief introduction to the law on abuse of process is presented.

Most lawyers in the United States emerge from law school in the grip of a myth. In the beginning, the myth runs, there was common law pleading, and it was very bad. Parties exchanged almost interminable series of pleadings — from declaration to surrebutter and beyond — in expensive and unsuccessful attempts to filter out invalid claims and defences without holding trials. Plaintiffs could not join related claims; defendants could not assert more than one defence; and advocates argued about how to fit claims into an incoherent medieval system of forms of action. The Field Code of 1848 initiated reforms, which the Federal Rules of Civil Procedure of 1938 consummated. As a result, cases were decided on their merits, without wasteful technicalities, and justice was done until 1975, when civil litigation somehow became even more expensive and time-consuming than under the common law. Even today, many first-year law students find much of this story in their books or hear it in their civil procedure classes. Most teachers realize that it is an oversimplification, but it furnishes too useful an organizing perspective to discard. This chapter addresses the following questions: How could we decide whether today's civil procedure is an improvement on the common law system? What are we comparing? Who sought or resisted reform? What difference did reform make?

This chapter discusses risk of error allocation in civil litigation. Topics covered include fairness vs efficiency, burden of proof and equality, exclusion of evidence as corrective equality, equality and pre-emption, corroboration as corrective equality, and equality and discretion.

For many years, French justice, like all other systems, has faced the dramatic consequences of the exploding volume of litigation. The long delays and high costs which this explosion causes are, to a certain extent, the counterpart of democratized access to law and justice. Although several reforms have been initiated, one should not forget that the current difficulties originate largely from the fact that the resources of the justice system have not risen proportionately to the sharp increase in the volume of litigation with which courts have been faced. The solution to the crisis is essentially financial. This chapter begins with a description of the French system of civil procedure. It then presents an outline for procedure. This is followed by discussions of the main problems encountered in the administration of civil justice, historical perspective of reform, alternative modes of dispute resolution, and the present state of affairs.

This chapter addresses questions regarding the function of the modern jury. These include why juries have been given so important a place in the judicial process, and how the jury ought to be constituted to carry out its work. The chapter also examines the process used to select a jury, instructions used to structure decision-making, and the nature and form of jury verdicts. Despite many challenges to the jury system, careful assessment suggests that juries are still a necessary and effective part of the judicial system.