Minnesota Court Reform

Reforms

Make Justice Efficient, Affordable, and Reasonable
[This is a digest of the chapter in the book]
Too many citizens are denied justice simply because of its cost. The cost of defending against a lawsuit or pressing legitimate charges must be reduced.

Some of the actions that will reduce the cost of litigation are: (1) eliminate court fees of hundreds of dollars that many people cannot afford; (2) simplify the court process; (3) reduce the need for lawyer time, which is very expensive; (4) assess fines on lawyers and their clients who press meritless cases; (5) provide independent, able and adequately funded public defenders to poor people who are charged with a crime or face losing custody of a child; and (6) expand the use, effectiveness and affordability of arbitration and mediation.

Court filing and other fees should be eliminated. Getting justice is a citizen's right and a government obligation. Deterring meritless lawsuits and actions can be accomplished by imposing fines and penalties as described below. This is far better than making justice unavailable because a person is too poor to pay court fees.

Saving Time and Shortening the Process
The court process can be simplified by requiring parties in a lawsuit to provide the other party with relevant information and documents up front as is the practice in federal courts. In those actions, this is called: "initial disclosures," and it saves a lot of time and expense.

Lawyer time, which often is $200 per hour or higher, can be reduced by providing a case summary and file organization service to people. This public service would be at a reasonable cost, say $50 per hour. Legal advice would not be provided by this service. The service would gather information and documents, prepare a case summary that describes the situation, and assemble the documents into a file. The summary and file can be submitted to a lawyer. This would save the significant time if often takes for a lawyer to start providing legal advice and start legal actions.

Arbitration and Mediation
Early use of effective arbitration and mediation could resolve disputes with huge savings in time and expense. Waiting until shortly before trial to engage in arbitration/mediation is not necessary.

Arbitration and mediation are different, although the purpose of each is the same. That purpose is settle the dispute and end the lawsuit if there is one.

An arbitrator conducts an arbitration. Mediation is conducted by a mediator. Both are referred to as "neutrals."

Arbitration
Arbitration can be binding or non-binding. If it is binding, the arbitrator, after listening to the testimony and considering the evidence, makes a decision - very much like a judge. His or her decision settles the dispute. By law, the decision of the arbitrator is final and cannot be overturned on appeal unless the arbitrator exceeded his or her authority of did something dishonest or illegal.

A non-binding arbitration does not result in a final settlement unless all parties to the dispute voluntarily accept the arbitrator's decision. In essence, the decision in a non-binding arbitration is advisory and reflects how the arbitrator thinks a judge would rule. Sometimes a non-binding arbitration helps the parties come to an agreement without proceeding further in the lawsuit.

As in court cases, there is a trial in an arbitration if the dispute is not resolved in advance of a trial. Prior to the trial, the parties typically submit summaries of the facts they expect to prove and their major arguments. The process at trial in an arbitration is about the same as in a court proceeding. Witnesses are sworn to tell the truth and give testimony. Parties submit documents and exhibits to back up their claims. However, the rules in arbitration are much more informal and far more flexible than in a court proceeding. Technical rules of evidence that bind a judge can be ignored in an arbitration.

After the arbitrator hears the testimony and considers the evidence (the exhibits) he or she issues a decision and informs the parties of it, generally sometime after the trial. Unlike judges, an arbitrator does not have to explain or back up his or her decision. Typically, the arbitrator announces the result only - that is, who wins and how much the winning party gets in money.

Mediation
The procedure in a mediation is very different from that in an arbitration. There is no trial in a mediation and the mediator usually meets with the parties separately until after there is a settlement if one is reached.

In a mediation, the parties typically sit in separate rooms during the mediation process. The mediator receives information in advance from each party telling the arbitrator that party's version of the facts and arguments, which the mediator reviews before the mediation. During the mediation, the mediator meets separately with each party to gain a better understanding of their positions and what is acceptable to each to settle the dispute.

After meeting with the parties one or more times, the mediator gives each party his or her analysis of that parties case. The mediator also makes a recommendation to each party on what would be a realistic and fair settlement.

the process of shuffling back and forth between the parties continues until there is agreement on a resolution of all issues - a settlement - or until everyone agrees a settlement cannot be reached.

Advantages of Arbitration and Mediation
Generally, arbitration and mediation are significantly cheaper than a court proceeding. Arbitrators and mediators are paid by the hour for their services and there generally is a significant fee in an arbitration if it is conducted by an organization such as the American Arbitration Association. However, there are few other costs. Because both arbitration and mediation are far simpler and more flexible, they are many times faster than a court proceeding, which greatly reduces the cost.

It follows that there are many reasons for promoting arbitration and mediation as alternatives to a court proceeding. Courts are beginning to insist that parties to a lawsuit must attempt non-binding arbitration or mediation before the lawsuit will be allowed to proceed to trial. But currently, judges allow the court process to continue for an extended period before the parties must attempt arbitration or mediation. It may be that arbitration or mediation should be required early in a court proceeding. Combined with other proposed reforms - initial disclosures and a fact summary service, both described above in this chapter - early arbitration or mediation could become much more feasible than they are currently.

To make arbitration and mediation affordable for parties in a lawsuit, partially funding them with public funds could be very cost effective in making justice far more available and in reducing the cost of maintaining our very expensive court system. One possibility is to pay retired judges an amount, say $35,000 per year, in addition to their retirement salary for services as part-time arbitrators and mediators. These services could be provided to parties in lawsuits at no charge if a settlement is reached and at moderate cost if there is no settlement. It is worth considering.

Curbing Abuses
Court provided independent experts to recommend damages awards to judges and juries will make the very expensive services of expert witnesses far less useful. The use of independent expert witnesses on property distribution issues and on child custody and visitation issues in dissolution cases also would make the services of party expert witnesses of doubtful value and thereby eliminate the expense of countering their testimony. Independent expert witnesses should have no connection with government agencies to assure they are not influenced by them.

Unjustified lawsuits by lawyers and their clients can be discouraged and greatly reduced by fines if the case is found to be meritless. Adoption of the English Rule that gives the winning party the right to recover their attorneys fees from the losing party also will deter meritless lawsuits.

Public officials who abuse their power in actions to deprive a parent of custody of a child should be heavily penalized. So should judges who wrongfully permit a child to be taken away from his/her biological parents. The rule that children should not be separated from their biological parents except for grave and weighty reasons needs to be greatly strengthened.

The excessive use of contingent fee litigation can be discouraged by promulgating rules applicable to these cases such as: (1) require lawyers to keep track of the hours they spend on each contingent fee case; (2) limit what a lawyer can charge in a contingent fee case to twice his regular hourly rate; (3) establish the requirement that the court will limit a lawyer's compensation in a contingent fee case to what is reasonable; (4) make the English rule that the loser pays the fees and costs of the prevailing party applicable to contingent fee cases; (5) allow contingent fee cases only in a few categories such as personal injury and only when the charging party cannot afford to hire an attorney at an hourly rate.

Empowering the Poor
Providing able public defenders who have the resources they need to effectively represent poor defendants charged with a crime, or poor parents who face the loss of custody of a child, will substantially reduce the agony and huge expense of wrongful imprisonments, and the pitiful damage to parents and their children of separating them, as well as the millions of dollars for foster care and related services paid for by taxpayers. Keeping families together, like keeping innocent people out of jail, reduces overall government spending by significant amounts.

Authorizing defendants, if they choose, to submit the results of lie detector tests to the judge in non-jury cases can help dispose of hundreds, perhaps thousands, of cases where the entire evidence is the conflicting statements of the adversaries - "he said vs she said." The decision in these cases often is based on who is the better liar. Lie detector tests are routinely used by the Federal Bureau of Investigation (FBI) and even by police departments in internal investigations, and even by some commercial companies when the subject has consented. A judge may or may not be persuaded by the results of a lie detector test, but at least give the defendant (or party) the option of submitting such evidence to the judge.

Other Reforms?
Other reforms that can improve our court and legal system are proposed and discussed in our website: www.mncourtreform.org/. Please let us know what you think of these additional reforms and what reforms you think would help. Write to us at: dalenathan@usfamily.net.

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