Maxeiner, James

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University of Baltimore School of Law

University of Baltimore LawScholarWorks@University of Baltimore School of LawAll Faculty Scholarship Faculty Scholarship6-24-2013The Fixable Flaws of America's Civil Justice SystemJames MaxeinerUniversity of Baltimore School of Law, jmaxeiner@ubalt.eduFollow this and additional works at: http://scholarworks.law.ubalt.edu/all_facPart of the Civil Law Commons, Courts Commons, Judges Commons, and the LitigationCommonsThis Editorial is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It hasbeen accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. Formore information, please contact snolan@ubalt.edu.Recommended CitationThe Fixable Flaws of America's Civil Justice System, Balt. Sun, June 24, 2013.ONews / OpinionThe fixable flaws of America's civil justicesystemBy James R. MaxeinerJUNE 24, 2013, 6:00 AMur civil justice system is obsessed with multimillion-dollar personal injury, antitrust andpolitically charged cases. It is unmoved by ordinary cases. Every day, it denies justice toordinary Americans who are in need. The late U.S. Chief Justice Warren Burger got it right: Our systemis "too costly, too painful, too destructive, too inefficient for a truly civilized people."Many civil lawsuits for less than $100,000 are too small to be worth bringing. That amount, $100,000,is not small to most Americans; it is double the annual family median income. But the system is tellingyou that if you paid $100,000 for substandard improvements to your home, it's your loss. We can't helpyou with small potatoes. Imagine if America's physicians were to say, you only have the flu, don't botherus. Come back when you have a heart attack.Americans would be outraged if they knew how much better some other countries do. Some civil justicesystems handle claims for $100,000, $10,000 and even $1,000 efficiently. Swiftly and justly, theyreturn close to 100 cents on the dollar. They give us clues what we might do:•We would recognize that people seeking justice want results and not the game that American lawsuitshave become. What use is my right to $100,000 if, after the court finds in my favor for $100,000, I owemy lawyer $75,000?•We would affirm that lawsuits are about deciding disputes by applying and not making law.•We would have nonpolitical judges who are trained to judge. They would be expected to doprofessional and prompt work and be evaluated on it — and they would not expect political accolades.•We would have plaintiffs tell courts up front why they believe they are entitled to help and how theyplan to prove it. You thought that we do that already? We don't.•We would have plaintiffs and defendants, and not just their lawyers, meet with judges at the beginningof lawsuits to tell the judges what their cases are all about. Right away plaintiffs, defendants and judgeswould know what their fights entail.•We wouldn't let lawyers do as they do now and go off willy-nilly to find out anything they might wantto "discover" about their opponents, looking for the "smoking gun" that could cinch the case (or forThe fixable flaws of America's civil justice system - Baltimore Sunsome new claim to raise).•We would have judges keep cases focused on what the disputes are about. They would make sure thatboth sides address all issues between them. Parties wouldn't be forced to settle cases because the risks,or simply the costs, of trying them are too great.•Court decisions, which now occur in fewer than 5 percent of cases, would be routine and not rare. Mostsettlements in the U.S. are reached for reasons other than the merits of the case. Courts would explainfully why they decided as they did. There would be no surprises.•In the end, courts will have managed cases to keep costs proportionate to amounts in dispute. They willcharge those costs to the side judged to have been in the wrong.This is how some systems abroad work well to deliver justice. This is not the system that we have. Whenit is, we will at long last come close to fulfilling the promises of our founders; in 1776 they declared thatevery American "ought to have justice and right, freely without sale, fully without denial, and speedilywithout delay, according to the law of the land."James R. Maxeiner is an associate professor of law at the University of Baltimore School of Law andthe author of "American Failures in Civil Justice in International Perspective." His email isjmaxeiner@ubalt.edu.Copyright © 2016, The Baltimore SunThis article is related to: Crime, Law and Justice, Laws and Legislation, Justice System, University ofBaltimore, FluThe fixable flaws of America's civil justice system - Baltimore Sun

The Fixable Flaws of America\u27s Civil Justice System

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The Fixable Flaws of America\u27s Civil Justice System

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