Too Expensive

Attorneys and the judges who hear their cases should be paid for a valuable service, no more no less, but that is not what is happening now. Litigation has become expensive because, at bottom, everyone’s trying to pass the buck, and to those to whom the buck is passed, each of them is out to make a buck.

Now I am far too fiscally conservative to suggest that the government should subsidize the costs of litigation further (and I have sufficient common sense and a fear of tyranny to advocate government subsidies as well), but I do advocate change in litigation costs. I’ve been practicing divorce and family law exclusively for such a long time that focus my comments on it.

Many contracts have a provision for a bonus paid if the project comes at least on time and budget, and for penalties incurred if deadlines are missed and budgets exceeded. Why not adopt a similar policy for domestic relations litigation?

1) Require a modest deposit with the court at the commencement of the case;

2) When the discovery and case management order is issued, include provision for refund of the deposit if the case is set for trial by the date appointed in the order;

- the judge/commissioner should have a hand in crafting the discovery and case management order, so that efficient disposition of the case, and monitoring of the same is part of the process from the start;

- periodic case status reports and milestones should be part of the discovery and case management order

3) If the case is not set for trial by the dates in the case management order, tap the deposit as a sanction (among other sanctions, such as making parties and attorneys take courses on time management and conflict resolution[1]; if the deposit should run out, start fining (and otherwise sanctioning) parties and their attorneys alike.

- if one party is guilty of dilatory conduct, take his deposit money and give it to the other party

4) And let’s implement loser pays. I do not claim to have a perfect scheme in place for implementing loser pays, but it’s time is manifestly come.

What do you think?

[1] While making the wrongdoers take courses on time management and conflict resolution (at their expense) may teach beneficial skills, it’s not skills I want to teach in compelling such, I want to teach “a lesson,” if you get my meaning. Kind of a “cure is worse than the disease” means of obtaining compliance. Education is overrated as the best or even the primary means of improving conduct. It’s virtue that improves conduct. And if we cannot all agree on how God wants us to live, we can all agree that at the root of civic virtue is, “Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets.” –Matthew 7:12. “The law will never make men free; it is men who have got to make the law free. They are the lovers of law and order who observe the law when the government breaks it.” — Henry David Thoreau, “Slavery in Massachusetts” (1854). So as we try to imbue society with virtue, to keep things on the rails, rigorous enforcement of basic principles of order and fairness is a basic step in the right direction.