Monday, November 6, 2017

Solving the Pro Se Revolution, and putting lawyers back to work, too

The October 2017 issue of the Illinois Bar Journal features an article by Ed Finkel, "The Pro Se Revolution," concerning the May 2017 Strategic Plan issued by the Supreme Court's Commission on Access to Justice.

There have always been pro se litigants. In days of yore, it seemed like pro ses were mostly party plaintiffs, rumpled men or women with piercing stares and unshakable confidence in the merits of the most dubious cases. As a young lawyer, I knew, when arriving for a Law Division morning motion call, that if three or four deputy sheriffs were present, there was a pro se case on the call that day.

But if there are still pro se litigants like this, and there are, they are far outnumbered, these days, by normal, average people who simply can't afford, or who believe they can't afford, legal representation. From Mr. Finkel's article:
Data from the Administrative Office of the Illinois Courts ("AOIC") show that in 2015, nearly two-thirds of total civil cases outside Cook County - 65.2 percent - had at least one self-represented litigant. For certain types of cases, this figure rises as high as 80 percent. In addition, the court system is facing the facts that one out of five Illinois residents speaks a language other than English at home according to U.S. Census data, the number of Illinois residents below the poverty line has grown, and the number of pro bono attorneys has not kept pace.
Finkel quotes Appellate Court Justice Mary K. Rochford, who chairs the ATJ Commission, as saying "people cannot afford legal representation for many reasons beyond our control, and often parts of our state do not have enough legal aid attorneys - and legal aid attorneys are facing their own economic issues.... Our focus is on how we can help the self-represented litigant navigate the court system, and have a full opportunity to present their claims and defenses. We wish everybody could afford a lawyer."

There is a way.

But it will take a lot more than merely streamlining existing procedures.

Why have legal services been priced beyond the reach of so many civil litigants?

In a word, discovery. Largely unfettered, "routine" discovery grossly inflates the cost of any litigation. Frequently deployed as a strategic weapon -- the pious admonitions against this practice in the cases notwithstanding -- discovery too often bleeds an opponent into either submission or bankruptcy.

The word discovery appears twice in the ATJ's Strategic Report, first at page 2 of the Executive Summary:
If more than half of the users of the civil court system are unrepresented by counsel, is it still feasible to require strict adherence to rules of civil procedure, discovery, and evidence?
The second and final appearance of the word comes at p. 27 of the Report, under Initiative 5, concerning the possible simplification or streamlining of existing court processes. The Commission report notes that, in civil cases in which less than $10,000 is sought, the Illinois Supreme Court has, by rule, done away with discovery except as permitted by court order (Supreme Court Rules 281-289), and in other cases, in which less than $50,000 is sought, imposed some limitations on "routine" discovery (Supreme Court Rule 222).

These rules are on the books now and the pro se crisis is growing. The ATJ Commission "proposes to gather information about simplification efforts in Illinois and in other jurisdictions, with the goal of evaluating the potential benefits of such efforts in additional areas of law" (p. 27).

But further nibbling at the edges of the monster that is unfettered discovery will prove unavailing.

What is required is a fundamental shift in the attitude of judges and lawyers toward discovery. We need to go back to the future.

In Lincoln's day, a lawyer seeking discovery in a tort or contract case had to file a separate chancery action, a bill of discovery, in order to -- possibly -- obtain discovery. We don't need to go back to that model exactly.

But we do need to make judges the gatekeepers -- skeptical gatekeepers -- as to what sort of discovery may be allowed in any case. I call this zero-based discovery.

Right now, discovery is supposed to take place largely off stage. The filing of discovery requests and discovery responses is actually prohibited (Supreme Court Rule 201(m)). The success of discovery depends on the cooperation of counsel (or counsel and any self-represented parties). In other words, it is a system that too often fails on contact with unhappy reality.

When it comes to discovery matters, judges are like parents driving kids on a long-distance trip. Discovery is what goes on in the back seat -- and when the inevitable squabbling takes place, judges don't know who started it, or why, but they need it to stop, and stop now! Order was usually restored when Mom or Dad threatened to pull over, but justice was not necessarily served. So it is with discovery disputes.

On the other hand, the judge who agrees that certain interrogatories will advance the conclusion of case for either trial or settlement, and who agrees on the formulation of those interrogatories, has an expectation of what will be asked and how it will be answered. The discovery manipulator who is never satisfied with any response will be cut off quickly when the allegedly offending party shows that he or she has met the court's expectations.

I know that many of my colleagues may blanch at the prospect of so limiting discovery. Discovery is often the chief means for associates to bill hours -- and fuel partner bonuses. And senior partners, at mid- or big-sized firms, are riding in the front seat along with the judges when it comes to discovery matters: They're often not paying attention to what goes on in the back seat either... unless one of their associates gets sanctioned.

But, even with zero-based discovery, judges would not always have to say no to discovery: When big firms, representing well-heeled clients, want to go after each other a bit, jostling for advantage, it's common sense not to get between them. But the judge who turns the lawyers loose on each other will have an expectation of what will emerge from the joust before it begins. Meanwhile, in most cases, the cost of litigation could come down -- way down -- with judges asking simple questions about why this deposition is necessary, or what a party expects to find in her opponent's documents. Imagine being the judge who, for the first time ever, gets to ask why a party needs his opponent to identify "with particularity, each and every data or document source" that opponent has "searched in responding to" a proposed production request. Imagine a judge sitting down with the parties at the outset of a case, asking what do you need, plaintiff, to prove your case that you don't already have? What do you need, defendant, to establish your defense, that you don't already have? What are the most efficient ways to get what you need?

Bring down the cost of litigation, bring back employment opportunities for lawyers. With zero-based discovery, maybe everybody can afford a lawyer. Less lawyers answering discovery... but more handling cases? That increases access to justice, does it not?

For more on zero-based discovery, see: